# State v. Welch > Supreme Court of New Jersey · November 22, 1965 · 46 N.J. 57 URL: https://www.frixlaw.com/law-library/cases/9646185 ## Case - **Full name:** State of New Jersey, Plaintiff-Respondent, v. Raymond Hale Welch, Defendant-Appellant - **Court:** Supreme Court of New Jersey - **Decided:** November 22, 1965 - **Citations:** 46 N.J. 57; 214 A.2d 857; 1965 N.J. LEXIS 140 - **Precedential status:** Published - **Opinion:** Dissent by Weintraub - **Judges:** Francis, Weintraub - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646185 ## Opinion text Weintraub, C. J. (dissenting). I regret I cannot join in the opinion of the Court. Defendant’s case has a certain appeal. He was 16 when the homicide occurred. Now 32, he has already spent half his years in jail. When he was convicted, he wanted a review but at that time there was no pro *79 vision for a transcript of the testimony at public expense except in the case of a death sentence. Thus there was not resolved a possibility, albeit slim, that his conviction might have been reversed and a retrial might have led to an acquittal or a lower degree of guilt. 1 Since then the Constitution has been found to assure a transcript.of the trial record for indigents convicted of any crime. Unfortunately defendant cannot now have a review upon a transcript because the stenographic notes, available when he sought an appeal, have since been destroyed. If no facts militate against it, the parole board could find defendant, apparently otherwise eligible, should now be paroled. That could well be an appropriate adjustment between the interest of society and the interest of this defendant. But the question before us is whether all pre-1956 convictions in cases in which stenographic notes were disposed of after the time for appeal had expired must be set aside upon a showing of indigency and a timely desire to appeal. True, the defendant did file a notice of appeal, but I cannot differentiate between a defendant who took that step and a defendant who did not because he knew a transcript would not be furnished. If only a few cases were involved, I would join the majority, but we cannot know how many defendants, now in or out of *80 custody, will assert a claim for relief. I believe the prospects are sufficient to make conspicuous the problem of retroactive application of decisional law. As the majority opinion points out, an indigent’s right to a free transcript was established in Griffin v. People of State of Illinois, 351 U. S. 12 , 76 S. Ct. 585 , 100 L. Ed. 891 (1956). The new rule was held to be retroactive in Eskridge v. Washington State Board etc., 357 U. S. 214 , 78 S. Ct. 1061 , 2 L. Ed. 2d 1269 (1958). Under Eskridge a defendant receives a delayed review, and if the transcript is available, the total interests involved are fairly served by that course. But if the transcript is no longer available, nothing short of a reversal can be ordered and perhaps at a date when the ease can no longer be retried with fairness to either side. It should be stressed that we are not dealing with a case in which a timely appeal cannot be heard because of the fortuitous loss of a stenographer’s notes. We are dealing with the problem of retroactive application of new constitutional doctrine to final judgments which were already unappealable when the notes, like other old and unneeded records, were destroyed. It seems to me that Norvell v. State of Illinois, 373 U. S. 420 , 83 S. Ct. 1366 , 10 L. Ed. 2d 456 (1963), is precisely in point, and correctly finds that where the transcript is no longer available through no fault of the State (I find no pertinent fault in the present case), the Constitution does not require that the conviction be undone. I cannot isolate this situation from the sundry others which todajr present the acute problem of retroactive application of decisional law. There is a strong public interest in the finality of judgments. We ought not dismiss that interest upon a mere speculation that justice was not done. Overall, the great, great probability is that the judgments of our predecessors were true. If legislators required judicial judgments to be vacated and cases retried whenever they changed their view of what is just and fair, we would think them somewhat mad. Yet, although most of us today recognize that judges make law *81 just as surely as do the members of the legislative branch, still, somehow, especially when the law being made is in the realm of constitutional doctrine, we are unable to shake the myth that we and we alone have seen some eternal truth. We cannot quite comprehend how the "constitutional” rights of individuals can depend upon the date of decision. We could, if we but understood the most we can say is that we disagree with others no less able and no less devoted to the cause of justice. We too can expect to be right only for the moment. Hence, with a bit of realism and a touch of humility, we should be content to let our views take care of today and hopefully a part of tomorrow. Indeed, the tempo of change is sure to quicken. Eor one thing, some critical concepts in this area cannot be maintained in their present posture. Further, there are strong pressures to deal in constitutional and therefore exclusive terms with questions heretofore thought not to stand so high in the scheme of things. If we insist upon reliving the past, a harried judicial process may be overwhelmed. We ought not take that risk upon the pleasant assumption that we alone are the authentic ministers of justice. Lest there be misunderstanding, I should add the members of our Court are in basic agreement upon the subject of retrospective impact of judge-made law. We differ here only in the application of that view to the specific problem before us. I would affirm. Hall and Haeemae, JJ., join in this dissent. For reversal — Justices Jacobs, Fkancis, Pboctok and Sohettino — 4. For affirmance — Chief Justice Weieteatjb and Justices Hall and Haeemae — 3. There is nothing affirmative to indicate a likelihood of success on the abortive appeal in this case. In their application for a “special rule” for a transcript, trial counsel said in general terms that “meritorious questions exist,” then adding that “In the judgment of said attorneys merit particularly attaches itself to the contention that the confession alleged to have been signed by the defendant, and which confession proved the basis of the State’s case, was erroneously admitted in evidence.” As to the issue thus thought preeminent, the full testimony of the defendant and of the Chief of the Essex County Park Police had already been transcribed and was and still is available. From the face of defendant’s testimony itself, it is evident the challenge to the confession would, surely in the year 1950, have presented a pure issue of credibility, and the possibility that Judge Conlon’s factual finding would have been reversed on appeal was just about nil. Further, as to issues of law, if any, there is nothing to show a suitable record could not have been prepared, without the aid of a transcript, for the certification of the trial judge. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646185. Public record. Not legal advice.