Douglas v. California/Dissent Clark

by Tom C. Clark

Mr. Justice CLARK, dissenting.

I adhere to my vote in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (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 20, 76 S.Ct., at 591. 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. ^[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 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, 83 S.Ct. 768, decision in these matters is not placed in the unreviewable discretion of the Public Defender or appointed counsel but is made by the appellate court itself. ^[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.

Notes

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%).

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, 83 S.Ct. 768 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, 76 S.Ct. 585 (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 16, 83 S.Ct., at 589. 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.