U.S. Supreme Court
Douglas v. California, 372
U.S. 353 (1963)
Douglas v. California
No. 34
Argued April 17, 1962
Restored to the calendar for reargument June 25, 1962
Reargued January 16, 1963
Decided March 18, 1963
372
U.S. 353
CERTIORARI TO THE DISTRICT COURT OF APPEAL
OF CALIFORNIA, SECOND APPELLATE DISTRICT
Syllabus
In a California State court, petitioners were tried jointly,
convicted of 13 felonies, and sentenced to imprisonment. Exercising
their only right to appeal as of right, they appealed to an
intermediate Court of Appeals, and, being indigent, applied to it
for appointment of counsel to assist them on appeal. In accordance
with a state rule of criminal procedure, that court made an
ex
parte examination of the record, determined that appointment
of counsel for petitioners would not be "of advantage to the
defendant or helpful to the appellate court," and denied
appointment of counsel. Their appeal was heard without assistance
of counsel, and their convictions were affirmed. The State Supreme
Court denied a discretionary review.
Held: Where the merits of the one and only appeal an
indigent has as of right were decided without benefit of counsel in
a state criminal case, there has been a discrimination between the
rich and the poor which violates the Fourteenth Amendment. Pp.
372 U. S.
353-358.
187 Cal. App.
2d 802, 10 Cal. Rptr. 188, judgment vacated and cause
remanded.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioners, Bennie Will Meyes and William Douglas, were jointly
tried and convicted in a California court on an information
charging them with 13 felonies. A single
Page 372 U. S. 354
public defender was appointed to represent them. At the
commencement of the trial, the defender moved for a continuance,
stating that the case was very complicated, that he was not as
prepared as he felt he should be because he was handling a
different defense every day, and that there was a conflict of
interest between the petitioners, requiring the appointment of
separate counsel for each of them. This motion was denied.
Thereafter, petitioners dismissed the defender, claiming he was
unprepared, and again renewed motions for separate counsel and for
a continuance. These motions also were denied, and petitioners were
ultimately convicted by a jury of all 13 felonies, which included
robbery, assault with a deadly weapon, and assault with intent to
commit murder. Both were given prison terms. Both appealed as of
right to the California District Court of Appeal. That court
affirmed their convictions.
187 Cal. App.
2d 802, 10 Cal. Rptr. 188. Both Meyes and Douglas then
petitioned for further discretionary review in the California
Supreme Court, but their petitions were denied without a hearing.
[
Footnote 1] 187 Cal. App. 2d at 813, 10 Cal.
Rptr. at 195. We granted certiorari. 368 U.S. 815.
Although several questions are presented in the petition for
certiorari, we address ourselves to only one of them. The record
shows that petitioners requested, and were denied, the assistance
of counsel on appeal, even though it plainly appeared they were
indigents. In denying petitioners' requests, the California
District Court of Appeal stated that it had "gone through" the
record
Page 372 U. S. 355
and had come to the conclusion that "no good whatever could be
served by appointment of counsel."
187 Cal. App.
2d 802, 812, 10 Cal. Rptr. 188, 195. The District Court of
Appeal was acting in accordance with a California rule of criminal
procedure which provides that state appellate courts, upon the
request of an indigent for counsel, may make
"an independent investigation of the record and determine
whether it would be of advantage to the defendant or helpful to the
appellate court to have counsel appointed. . . . After such
investigation, appellate courts should appoint counsel if in their
opinion it would be helpful to the defendant or the court, and
should deny the appointment of counsel only if in their judgment
such appointment would be of no value to either the defendant or
the court."
People v. Hyde, 51 Cal. 2d
152, 154, 331 P.2d 42, 43.
We agree, however, with Justice Traynor of the California
Supreme Court, who said that the
"[d]enial of counsel on appeal [to an indigent] would seem to be
a discrimination at least as invidious as that condemned in
Griffin v. Illinois. . . ."
People v. Brown, 55 Cal. 2d 64,
71, 9 Cal. Rptr. 816, 357 P.2d 1072, 1076 (concurring opinion). In
Griffin v. Illinois, 351 U. S. 12, we
held that a State may not grant appellate review in such a way as
to discriminate against some convicted defendants on account of
their poverty. There, as in
Draper v. Washington,
372 U. S. 487, the
right to a free transcript on appeal was in issue. Here, the issue
is whether or not an indigent shall be denied the assistance of
counsel on appeal. In either case, the evil is the same:
discrimination against the indigent. For there can be no equal
justice where the kind of an appeal a man enjoys "depends on the
amount of money he has."
Griffin v. Illinois, supra at p.
351 U. S.
19.
In spite of California's forward treatment of indigents, under
its present practice, the type of an appeal a person is afforded in
the District Court of Appeal hinges
Page 372 U. S. 356
upon whether or not he can pay for the assistance of counsel. If
he can, the appellate court passes on the merits of his case only
after having the full benefit of written briefs and oral argument
by counsel. If he cannot, the appellate court is forced to prejudge
the merits before it can even determine whether counsel should be
provided. At this stage in the proceedings, only the barren record
speaks for the indigent, and, unless the printed pages show that an
injustice has been committed, he is forced to go without a champion
on appeal. Any real chance he may have had of showing that his
appeal has hidden merit is deprived him when the court decides on
an
ex parte examination of the record that the assistance
of counsel is not required.
We are not here concerned with problems that might arise from
the denial of counsel for the preparation of a petition for
discretionary or mandatory review beyond the stage in the appellate
process at which the claims have once been presented by a lawyer
and passed upon by an appellate court. We are dealing only with the
first appeal, granted as a matter of right to rich and poor alike
(Cal.Penal Code §§ 1235, 1237), from a
criminal conviction. We need not now decide whether California
would have to provide counsel for an indigent seeking a
discretionary hearing from the California Supreme Court after the
District Court of Appeal had sustained his conviction (
see
Cal.Const., Art. VI, § 4c; Cal.Rules on Appeal, Rules
28, 29), or whether counsel must be appointed for an indigent
seeking review of an appellate affirmance of his conviction in this
Court by appeal as of right or by petition for a writ of certiorari
which lies within the Court's discretion. But it is appropriate to
observe that a State can, consistently with the Fourteenth
Amendment, provide for differences so long as the result does not
amount to a denial of due process or an "invidious discrimination."
Williamson v. Lee Optical of
Oklahoma, 348
Page 372 U. S. 357
U.S. 483,
348 U. S. 489;
Griffin v. Illinois, supra, p.
351 U. S. 18.
Absolute equality is not required; lines can be and are drawn, and
we often sustain them.
See Tigner v. Texas, 310 U.
S. 141;
Goesaert v. Cleary, 335 U.
S. 464. But where the merits of the one and only appeal
an indigent has as of right are decided without benefit of counsel,
we think an unconstitutional line has been drawn between rich and
poor.
When an indigent is forced to run this gantlet of a preliminary
showing of merit, the right to appeal does not comport with fair
procedure. In the federal courts, on the other hand, an indigent
must be afforded counsel on appeal whenever he challenges a
certification that the appeal is not taken in good faith.
Johnson v. United States, 352 U.
S. 565. The federal courts must honor his request for
counsel regardless of what they think the merits of the case may
be; and "representation in the role of an advocate is required."
Ellis v. United States, 356 U. S. 674.
[
Footnote 2] In California, however, once the
court has "gone through" the record and denied counsel, the
indigent has no recourse but to prosecute his appeal on his own, as
best he can, no matter how meritorious his case may turn out to be.
The present case, where counsel was denied petitioners on appeal,
shows that the discrimination is not between "possibly good and
obviously bad cases," but between cases where the rich man can
require the court to listen to argument of counsel before deciding
on the merits, but a poor man cannot. There is lacking
Page 372 U. S. 358
that equality demanded by the Fourteenth Amendment where the
rich man, who appeals as of right, enjoys the benefit of counsel's
examination into the record, research of the law, and marshalling
of arguments on his behalf, while the indigent, already burdened by
a preliminary determination that his case is without merit, is
forced to shift for himself. The indigent, where the record is
unclear or the errors are hidden, has only the right to a
meaningless ritual, while the rich man has a meaningful appeal.
We vacate the judgment of the District Court of Appeal and
remand the case to that court for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
While the notation of a denial of hearing by the California
Supreme Court indicates that only Meyes petitioned that Court for a
hearing, and is silent as to Douglas' attempts at further review,
the record shows that the petition for review was expressly filed
on behalf of Douglas as well. Both Meyes and Douglas, therefore,
have exhausted their state remedies and both cases are properly
before us. 28 U.S.C. § 1257(3).
[
Footnote 2]
"When society acts to deprive one of its members of his life,
liberty or property, it takes its most awesome steps. No general
respect for, nor adherence to, the law as a whole can well be
expected without judicial recognition of the paramount need for
prompt, eminently fair and sober criminal law procedures. The
methods we employ in the enforcement of our criminal law have aptly
been called the measures by which the quality of our civilization
may be judged."
Coppedge v. United States, 369 U.
S. 438,
369 U. S.
449.
MR. JUSTICE CLARK, dissenting.
I adhere to my vote in
Griffin v. Illinois,
351 U. S. 12
(1956), but, as I have always understood that case, it does not
control here. It had to do with the State's obligation to furnish a
record to an indigent on appeal. There, we took pains to point out
that the State was free to "find other means of affording adequate
and effective appellate review to indigent defendants."
Id. at
351 U. S. 20.
Here, California has done just that in its procedure for furnishing
attorneys for indigents on appeal. We all know that the
overwhelming percentage of
in forma pauperis appeals are
frivolous. Statistics of this Court show that over 96% of the
petitions filed here are of this variety. [
Footnote
2/1] California, in the light of a like experience, has
provided that, upon the filing of an application for the
appointment of counsel, the District Court of Appeal shall make
"an independent investigation of the record
Page 372 U. S. 359
and determine whether it would be of advantage to the defendant
or helpful to the appellate court to have counsel appointed."
People v. Hyde, 51 Cal. 2d
152, 154, 331 P.2d 42, 43 (1958). California's courts did that
here, and, after examining the record, certified that such an
appointment would be neither advantageous to the petitioners nor
helpful to the court. It therefore refused to go through the
useless gesture of appointing an attorney. In my view, neither the
Equal Protection Clause nor the Due Process Clause requires more. I
cannot understand why the Court says that this procedure afforded
petitioners "a meaningless ritual." To appoint an attorney would
not only have been utter extravagance and a waste of the State's
funds, but as surely "meaningless" to petitioners.
With this new fetish for indigency, the Court piles an
intolerable burden on the State's judicial machinery. Indeed, if
the Court is correct, it may be that we should first clean up our
own house. We have afforded indigent litigants much less protection
than has California. Last Term, we received over 1,200
in forma
pauperis applications, in none of which had we appointed
attorneys or required a record. Some were appeals of right. Still
we denied the petitions or dismissed the appeals on the moving
papers alone. At the same time, we had hundreds of paid cases in
which we permitted petitions or appeals to be filed with not only
records, but briefs by counsel, after which they were disposed of
in due course. On the other hand, California furnishes the indigent
a complete record, and, if counsel is requested, requires its
appellate courts either to (1) appoint counsel or (2) make an
independent investigation of that record and determine whether it
would be of advantage to the defendant or helpful to the court to
have counsel appointed. Unlike
Lane v. Brown, 372 U.
S. 477, decision in these matters is not placed in the
unreviewable discretion
Page 372 U. S. 360
of the Public Defender or appointed counsel but is made by the
appellate court itself. [
Footnote 2/2]
California's concern for the rights of indigents is clearly
revealed in
People v. Hyde, supra. There, although the
Public Defender had not undertaken the prosecution of the appeal,
the District Court of Appeal nevertheless referred the application
for counsel and the record to the Los Angeles Bar Association. One
of its members reviewed these papers, after which he certified that
no meritorious ground for appeal was disclosed. Despite this, the
California District Court of Appeal made its own independent
examination of the record.
There is an old adage which my good Mother used to quote to me,
i.e., "People who live in glass houses had best not throw
stones." I dissent.
[
Footnote 2/1]
Statistics from the office of the Clerk of this Court reveal
that, in the 1961 Term, only 38 of 1,093
in forma pauperis
petitions for certiorari were granted (3.4%). Of 44
in forma
pauperis appeals, all but one were summarily dismissed
(2.3%).
[
Footnote 2/2]
The crucial question here is, of course, the effectiveness of
the appellate review which was unquestionably provided. In
Lane
v. Brown, 372 U. S. 477, the
unreviewable decision of the Public Defender precluded any
appellate review under Indiana law. As to the fairness and
effectiveness of the appellate review here as compared with
Griffin v. Illinois, 351 U. S. 12
(1956), the State conceded the necessity of a transcript for
adequate review of the alleged trial errors in that case.
Id., 372 U.S. at
372 U. S. 16.
Compare the statement of the District Court of Appeal in
affirming here:
"Further, the briefs filed by Meyes (which Douglas adopted)
conform to the rules in all respects, are well written, present all
possible points clearly and ably with abundant citation of
pertinent authorities, and were no doubt prepared by one well
versed in criminal law and procedure and in brief writing. There
was no prejudicial error in not appointing counsel for defendants
on the appeal."
187 Cal. App.
2d 802, 812, 10 Cal. Rptr. 188, 195.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
dissenting.
In holding that an indigent has an absolute right to appointed
counsel on appeal of a state criminal conviction, the Court appears
to rely both on the Equal Protection
Page 372 U. S. 361
Clause and on the guarantees of fair procedure inherent in the
Due Process Clause of the Fourteenth Amendment, with obvious
emphasis on "equal protection." In my view, the Equal Protection
Clause is not apposite, and its application to cases like the
present one can lead only to mischievous results. This case should
be judged solely under the Due Process Clause, and I do not believe
that the California procedure violates that provision.
EQUAL PROTECTION
To approach the present problem in terms of the Equal Protection
Clause is, I submit, but to substitute resounding phrases for
analysis. I dissented from this approach in
Griffin v.
Illinois, 351 U. S. 12,
351 U. S. 29,
351 U. S. 34-36,
[
Footnote 3/1] and I am constrained to dissent
from the implicit extension of the equal protection approach here
-- to a case in which the State denies no one an appeal, but seeks
only to keep within reasonable bounds the instances in which
appellate counsel will be assigned to indigents.
The States, of course, are prohibited by the Equal Protection
Clause from discriminating between "rich" and "poor" as such in the
formulation and application of their laws. But it is a far
different thing to suggest that this provision prevents the State
from adopting a law of general applicability that may affect the
poor more harshly than it does the rich, or, on the other hand,
from making some effort to redress economic imbalances while not
eliminating them entirely.
Every financial exaction which the State imposes on a uniform
basis is more easily satisfied by the well-to-do than by the
indigent. Yet I take it that no one would dispute the
constitutional power of the State to levy a
Page 372 U. S. 362
uniform sales tax, to charge tuition at a state university, to
fix rates for the purchase of water from a municipal corporation,
to impose a standard fine for criminal violations, or to establish
minimum bail for various categories of offenses. Nor could it be
contended that the State may not classify as crimes acts which the
poor are more likely to commit than are the rich. And surely, there
would be no basis for attacking a state law which provided benefits
for the needy simply because those benefits fell short of the goods
or services that others could purchase for themselves.
Laws such as these do not deny equal protection to the less
fortunate for one essential reason: the Equal Protection Clause
does not impose on the States "an affirmative duty to lift the
handicaps flowing from differences in economic circumstances."
[
Footnote 3/2] To so construe it would be to
read into the Constitution a philosophy of leveling that would be
foreign to many of our basic concepts of the proper relations
between government and society. The State may have a moral
obligation to eliminate the evils of poverty, but it is not
required by the Equal Protection Clause to give to some whatever
others can afford.
Thus it should be apparent that the present case, as with
Draper v. Washington, 372 U. S. 487, and
Lane v. Brown, 372 U. S. 477, is
not one properly regarded as arising under this clause. California
does not discriminate between rich and poor in having a uniform
policy permitting everyone to appeal and to retain counsel, and in
having a separate rule dealing only with the standards for the
appointment of counsel for those unable to retain their own
attorneys. The sole classification established by this rule is
between those cases that are believed to have merit and those
regarded as frivolous. And, of course, no matter how far the state
rule might go
Page 372 U. S. 363
in providing counsel for indigents, it could never be expected
to satisfy an affirmative duty -- if one existed -- to place the
poor on the same level as those who can afford the best legal
talent available.
Parenthetically, it should be noted that, if the present problem
may be viewed as one of equal protection, so may the question of
the right to appointed counsel at trial, and the Court's analysis
of that right in
Gideon v. Wainwright, 372 U.
S. 335, is wholly unnecessary. The short way to dispose
of
Gideon v. Wainwright, in other words, would be simply
to say that the State deprives to indigent of equal protection
whenever it fails to furnish him with legal services, and perhaps
with other services as well, equivalent to those that the affluent
defendant can obtain.
The real question in this case, I submit, and the only one that
permits of satisfactory analysis, is whether or not the state rule,
as applied in this case, is consistent with the requirements of
fair procedure guaranteed by the Due Process Clause. Of course, in
considering this question, it must not be lost sight of that the
State's responsibility under the Due Process Clause is to provide
justice for all. Refusal to furnish criminal indigents with some
things that others can afford may fall short of constitutional
standards of fairness. The problem before us is whether this is
such a case.
DUE PROCESS
It bears reiteration that California's procedure of screening
its criminal appeals to determine whether or not counsel ought to
be appointed denies to no one the right to appeal. This is not a
case, like
Burns v. Ohio, 360 U.
S. 252, in which a court rule or statute bars all
consideration of the merits of an appeal unless docketing fees are
prepaid. Nor is it like
Griffin v. Illinois, supra, in
which the State conceded that "petitioners needed a transcript
Page 372 U. S. 364
in order to get adequate appellate review of their alleged trial
errors." 351 U.S. at
351 U. S. 16.
Here it is this Court which finds, notwithstanding California's
assertions to the contrary, that, as a matter of constitutional
law, "adequate appellate review" is impossible unless counsel has
been appointed. And while
Griffin left it open to the
States to devise "other means of affording adequate and effective
appellate review to indigent defendants," 351 U.S. at
351 U. S. 20,
the present decision establishes what is seemingly an absolute rule
under which the State may be left without any means of protecting
itself against the employment of counsel in frivolous appeals.
[
Footnote 3/3]
It was precisely towards providing adequate appellate review --
as part of what the Court concedes to be "California's forward
treatment of indigents" -- that the State formulated the system
which the Court today strikes down. That system requires the state
appellate courts to appoint counsel on appeal for any indigent
defendant except "if, in their judgment, such appointment would be
of no value to either the defendant or the court."
People v.
Hyde, 51 Cal. 2d
152, 154, 331 P.2d 42, 43. This judgment can be reached only
after an independent investigation of the trial record by the
reviewing court. And even if counsel is denied, a full appeal on
the merits is accorded to the indigent appellant, together with a
statement of the reasons why counsel was not assigned. There is
nothing in the present case, or in any other case that has been
cited to us, to indicate that the system has resulted in injustice.
Quite the contrary, there is every reason to believe that
California appellate courts have made a painstaking effort to apply
the rule fairly and to live up to the State Supreme Court's
mandate.
See, e.g., the discussion
Page 372 U. S. 365
in
People v. Vigil, 189 Cal. App.
2d 478, 480-482, 11 Cal. Rptr. 319, 321-322.
We have today held that in a case such as the one before us,
there is an absolute right to the services of counsel at trial.
Gideon v. Wainwright, ante, p.
372 U. S. 335.
But the appellate procedures involved here stand on an entirely
different constitutional footing. First, appellate review is in
itself not required by the Fourteenth Amendment,
McKane v.
Durston, 153 U. S. 684;
see Griffin v. Illinois, supra, at
351 U. S. 18,
and thus the question presented is the narrow one whether the
State's rules with respect to the appointment of counsel are so
arbitrary or unreasonable,
in the context of the particular
appellate procedure that it has established, as to require
their invalidation. Second, the kinds of questions that may arise
on appeal are circumscribed by the record of the proceedings that
led to the conviction; they do not encompass the large variety of
tactical and strategic problems that must be resolved at the trial.
Third, as California applies its rule, the indigent appellant
receives the benefit of expert and conscientious legal appraisal of
the merits of his case on the basis of the trial record, and
whether or not he is assigned counsel, is guaranteed full
consideration of his appeal. It would be painting with too broad a
brush to conclude that, under these circumstances, an appeal is
just like a trial.
What the Court finds constitutionally offensive in California's
procedure bears a striking resemblance to the rules of this Court
and many state courts of last resort on petitions for certiorari or
for leave to appeal filed by indigent defendants
pro se.
Under the practice of this Court, only if it appears from the
petition for certiorari that a case merits review is leave to
proceed
in forma pauperis granted, the case transferred to
the Appellate Docket, and counsel appointed. Since our review is
generally discretionary, and since we are often not even given the
benefit of a record in the proceedings below, the disadvantages
Page 372 U. S. 366
to the indigent petitioner might be regarded as more substantial
than in California. But as conscientiously committed as this Court
is to the great principle of "Equal Justice Under Law," it has
never deemed itself constitutionally required to appoint counsel to
assist in the preparation of each of the more than 1,000
pro
se petitions for certiorari currently being filed each Term.
We should know from our own experience that appellate courts
generally go out of their way to give fair consideration to those
who are unrepresented.
The Court distinguishes our review from the present case on the
grounds that the California rule relates to "the
first
appeal, granted as a matter of right."
Ante, p.
372 U. S. 356.
But I fail to see the significance of this difference. Surely, it
cannot be contended that the requirements of fair procedure are
exhausted once an indigent has been given one appellate review.
Cf. Lane v. Brown, post, p.
372 U. S. 477. Nor
can it well be suggested that having appointed counsel is more
necessary to the fair administration of justice in an initial
appeal taken as a matter of right, which the reviewing court on the
full record has already determined to be frivolous, than in a
petition asking a higher appellate court to exercise its discretion
to consider what may be a substantial constitutional claim.
Further, there is no indication in this record, or in the state
cases cited to us, that the California procedure differs in any
material respect from the screening of appeals in federal criminal
cases that is prescribed by 28 U.S.C. § 1915. As
recently as last Term, in
Coppedge v. United States,
369 U. S. 438, we
had occasion to pass upon the application of this statute. Although
that decision established stringent restrictions on the power of
federal courts to reject an application for leave to appeal
in
forma pauperis, it nonetheless recognized that the federal
courts could prevent the needless expenditure of public funds by
summarily disposing of frivolous appeals. Indeed, in some
Page 372 U. S. 367
respects, California has outdone the federal system, since it
provides a transcript and an appeal on the merits in all cases, no
matter how frivolous.
I cannot agree that the Constitution prohibits a State in
seeking to redress economic imbalances at its bar of justice and to
provide indigents with full review, from taking reasonable steps to
guard against needless expense. This is all that California has
done. Accordingly, I would affirm the state judgment. [
Footnote 3/4]
[
Footnote 3/1]
The majority in
Griffin appeared to rely, as here, on a
blend of the Equal Protection and Due Process Clauses in arriving
at the result. So far as the result in that case rested on due
process grounds, I fully accept the authority of
Griffin.
[
Footnote 3/2]
Griffin v. Illinois, supra, at
351 U. S. 34
(dissenting opinion of this writer).
[
Footnote 3/3]
California law provides that if counsel is appointed on appeal,
the court shall fix a reasonable fee to be paid by the State.
California Penal Code § 1241. It is, of course, clear
that this Court may not require the State to compel its attorneys
to donate their services.
[
Footnote 3/4]
Petitioners also contend that they were denied the effective
assistance of counsel at trial. This claim, in my view, is without
merit. A reading of the record leaves little doubt that
petitioners' dismissal of their appointed counsel and their efforts
to obtain a continuance were designed to delay the proceedings and,
in all likelihood, to manufacture an appealable issue. Moreover,
the trial court acted well within constitutional bounds in denying
the claim that there was a conflict of interest between Douglas and
Meyes that required a separate appointed attorney for each.