Appellants Brief — Mayer v. Chicago

Supreme Court brief1971

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Supreme Court,: US,

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6 Courr. U, | JUN 8 1871

; E. ROBERT SEAVER; ref

“IN THE ;

Supreme Court of the United States

OCTOBER TERM, 1970

) 0-57 oy o-

No.666t__ _

JACK L. MAYER, °.

| Appellant,

. ; .

_THE CITY OF CHICAGO,

Appellee.

APPEAL FROM THE SUPREME COURT OF ILLINOIS “

. <2

__ BRIEF FOR APPELLANT

HENRY F. FIELD

THOMAS B. MCNEILL

é RoBERT A. BURT “«

231 South La Salle Street

Chicago, Illinois 60604

. Counsel for Appellant

Washington, 0. C. - THIEL PRESS - 202 . 393-0625

| (i)

TABLE OF CONTENTS

Opinion Below .................. Pew ew ene de uuads

Jurisdiction ............ 0... ce eee ee ee ee ee Lae

Argument:

II.

Constitutional and Statutory Provisions Involved ...........

* Question Presented ....... pee eeweaees Seu eeeee lo.

Statement of the Case .................. Uwe eeaeeeee

‘Summary of Argument ...5.......... 000000 c eee aes

Simply because an indigent appellant was convicted

of nonfelony offenses, a State may not Constitution-

ally deny him a free trial transcript where such tran-

script is necessary to effectively present his conten-

IONE ON SOPCRE. 5 ce 6 oc me oe ees ve oe Su ie

The Constitutional Standard: a convicted indigent

must be afforded as adequate an appeal as a

person with funds ....................2004.

If defendant had funds, he would have a tran-

Script and a full appeal .....................

.. Without a transcript, defendant will be denied the

- essence of his appeal ................... Saas

. There js no adequate alternative to the transcript

“an UMS Appeal 5 64 skis be we tase nw ees ee een es

. Illinois may not deny free transcripts to indigents

convicted of nonfelony offenses ........ ae eae es

1. Williams v. Oklahoma City controls this case... ..

2. Williams v. Oklahoma City cannot be distin-

guished on the bases of the penalty imposed or

the seriousness of the offense .............. -

Regardless of thé controlling force of Williams ‘v. Okla-

homa City, both equal protection and due process

principles require Illinois to furnish a transcript to an

indigent-nonfelony appellant ...................

A. The Equal Protection Clause: Illinois transcript

policy ‘denies equal protection to poor persons

appealing from nonfelony convictions ..........

(ii) 7

7 Page

B. The Due Process Clause: denying convicted indi-

gents full appellate hearings is fundamentally

unfair and violates due process of law ............ 26

III. Granting defendant his transcript will not unreason-

ably burden the ee a 28

IV. The judicial system and society will greatly benefit if

all convicted indigents are insured access to their trial |

transcripts WEETTCCPE CCL CTR TTT 38

Conclusion ................. re ec "4d.

Additional Constitutional, Statutory ‘and Other Provisions .

Involved... 0.0.0.0... ee ee eee eee la-Ja_

| TABLE OF AUTHORITIES

Cases:

Babouris:v. Esperdy, 269 F.2d 621 (2d Cir. 1959) .......... on

Benton v. Maryland, 395 US. 784 RN9O9) hc te ee ees x 27

Berger vgUnited States, 295 U.S. 78 (1935) ....... eee. 1

Boddie v. Connecticut, _. U.S. __, 91 S.Ct. 20, 25, 26,

780(1971) 1.2.0... ee ee aoe ee eee 27, 28

Burns v. Ohio, 360 U.S. 252 (1959). ......1 : , 8,25.

Chambers v. Florida, 309 U.S. 227 (1940) ..........-.-. 2

Coppedge v. United States, 369 U.S. 438,(1962) ....... oe.

District of Columbia v. Colts, 282 U.S. 63 (1930) ........ 1. 21

Douglas v. California, 372 U.S. 353 (1963) ....... bate x nee 9, 26

Draper v. Washington, 372 U.S. 487 (1963) ...... 8, 10, 13, 15, 26

Duncan v. Louisiana, 391 U.S. 145 (1968) ....... cece. 22

Eskridge v. Washington Prison Board, 357 U.S. 214 (1958) ....9, 10

Ex Parte Johnson, 20 Okla. Cr. 66, 201 P. 533 (1921)....... 22

Gardner-v. California, 393 U.S. 367 (1969)............... 10

Gideon v. Wainwright, 372 U.S. 335 (1963) ..... Loe. e es. 27,28

_ Griffin v. Ilinois, 351 U.S. 12 (1956)...............--- passim

Groppi v. Wisconsin, 400 U.S. 505 (1971) ...........-... 18

Hamilton v. Alabama, 368 U.S. 52 (1961) ............... 28

(iii)

. | Page

Hardy v. United States, 375 U.S. 277 (1964) ..... lee. 10

Harper v. Virginia Board of Elections, 383.U.S. 663 (1966).... 25

In Re Anastaplo, 18 Ill. 2d 182, 163 N-E.2d 429, aff’d 366

US. 82 (1961) 0. cece ees 20

In:Re Boykin, 39 Ill. 2d 617, 237 N.E.2d 460 (1968) ....... 16

In Re Gault, 387 U.S. 1 (1967)... 2.0.2.0 .2.0 0000. 20, 22, 28

In Re Henderson, 61 Cal. 2d ‘S41, 39 Cal. Rept. 373, 393

P.2d 685 (1964) ...... Se kent nsiapeaeiaeeneene .. 37

In Re Winship, 397 U.S. 358 (1970) ........ peusensees: 22

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..:.... 21,22

. Kent v. United States, 383 U.S. 541 (1966) ..............° 39

Lane v. Brown, 372 U.S. 477 (1963) ............-.02005. 9

Long v. District Court of lowa, 385 U.S. 192 (1966) ....... 9, 10

Malloy v. Hogan, 378 U.S. 1 (1964)... ..........-0 2406. 27

McCottrell v. Benson, 32 Ill. App. 2d 367, 178 N.E. 2d 144

(196))..c seven cee nreeexs ces enews oes see .. 15

McKane v. Durston, 153 U.S. 684 (1894) ..... Shun yesa ees 27

Milani v. Illinois, 386 U.S. 12 (1967) ....... lees ... 10

Muller v. Municipal Court, 259 & A.2d na 66 Cal. . Rept. |

367 (1968)... cee eee eee e eens 37

People v. Andrews, 82 Ill. App. 2d 59, 227 N.E.2d 91 (1967)... 15

People v. Bain, 359 Ill. 455, 195 N.E.42 (1935) ..... re 16

People v. Carroll, 76 Ill. App. 2d 9, 221 N.E.2d 528 (1966)... 34

People v. Collins, 38 Misc. 2d 952, 239 N.Y.S.2d 274 (Erie

County Court 1963) ........... 0.2... 0.0.00. 00 00 ee 37

People v. Ford, 45 Ill. App. 2d 289, 196 N.E.2d 1 (1963)..... . 22

People v. Freeman, 44 Misc. 2d 1016, 255 N.Y.S.2d 563

(Seneca County. Court 1965) ee er renee 37

People v. Gavurnik, 2 Ill. 34 | 190, 117 N.E.2d 782 (1954)..... 43

People v. Giles, 152 N.Y. 136, 46 N.E. 326 (1897) ......... 40

People v. Gonzales, 40 Ill. 2d 233, 239 N.E.2d 783 (1968) .... 13

People v. Letterio, 16 N.E.2d 307, 213 N.E.2d 670 (1965) ... 31, 32

People v. Milani, 34 Ill. 2d 524 (1966)...-...........-.. 10

(iv)

. she

People v. Newhart, 235 .N.Y.S.2d 330 Schuyler County

COUN 2962) uo 6 Oe ey eee eee ee ee ee haw eeens 40

People v. Rockett, 85 Ill. Ape. 2d 24,.228 N.E.2d 219

CI9GT) cc eee eee ee es cease Gweew neue eeuye ea enes 13

People v. Saalfield, 14 N.Y.2d 915, 252 N.Y.S.2d 320, 200

N.E.2d 862 (1964) ......... 200.0... 0200000020004. 40

People v. Schenkel, 256 N.Y. 539, 117 N.E. 131 (Ct. App.

APS ee ees eee re ewe oo eb ees nse eas 40

People v. Sporborg, 57 Misc. 2d 140, 292 N.Y.S.2d 162

(1968) (Sup. Ct. App. Term) ...................... 37

People v. Stathas, 356 Ill..313, 190 N.E. 661 (1934) ........ - dl

Preston v. Municipal Court, 188 C.A.2d 76, 10 Cal. Reptr.

2d 301 (ist Dist. Ct. App.1961)...... oie eee ee eee 26, 37

Rinaldi v. Yeager, 384 U.S. 305 (1966) ......... seeieSece OF

Roberts v. LaVallee, 389 U.S. 40 (1967), :... 4.2... bee eae 9,10

Rodriguez v. Rosenblatt, Supreme Court of New Jersey,

Sept. Term 1970, No. A-77, decided May 10,1971 ....... 37

Schick v. United States, 195 U.S. 65 (1904) .............. 21

Shapiro v. Thompson, 394 U.S. 618 (1969) .......... 24, 26, 28 ©

Smith v. Bennett, 365 U.S. 708 (1961) ........... nag oy 103.22

Tate v. Short, __:; U.S. __, 91 S.Ct. 668 _

CU97T) cen beast ayes estes Cea ee was 19, 22, 25, 34, 36

Tate v. United States, 123 US. App. D.C. 261, 359 F.2d

DAS C9GG) 5g oe oe ee ee ee Be ee eee es 37

United States v. Smith, 420 F.2d 428 (Sth Cir. 1970) eee ees 21

Village of Maywood v. Houston, 10 Ill. 2d 117, 139 N.E.2d

TAP CIISG) ow oa ee oe ee ee ee ee eee 17

Village of Park Forest v. Brags, 74 Ill. App. 2d 87,°220

N.E.2d G1 (1966) 2. ccs coche oe ee esis ks 17

Waller v. Florida, 397 U.S. 387:(1970) .:...........0005 22

Williams v. Illinois, 399 U.S. 235 (1970). ....... 23, 24, 26, 28, 36

Williams v. Oklahoma City, 395 U.S. 458 (1969) . . . 9, 17, 18, 23, 28

Wisconsin v. Constantineau, 400 U.S. 433 (1971) ........... 21

(v)

Page

Wyngaard v. Kennedy, 111 USS. App. D. C. 197, 295 F.2d

| T8400. Cir. 2961) 2s oss he on pest ee ena ee sae 21

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............. 18,23

Constitutional Provisions:

United States Constitution, Amendment 14............... 8

IMinois Constitution of 1870:

Article IH], §§5,9 .......... geese ee eu sevens as 22

sATTICIE VIS 9D oe eee cee ee senees vas aneasaeses 9

Article VI,§7 ......... ba be ue ee eee eae ee eee 9

Statutory Provisions and Rules of Court:

28 U.S.C. $ 1257(2) ee pee eeeues 2

Illinois Supreme Court Rules (110 A Ill. Rev. Stat. §§ 1-752) ae

(1969): a ,

Rule 285 ....-..... eao6 eg eeu eeses ee _ ae

Rule 323(c) and (d) .. 2... 2. oe eee 14

Rule GO7(D) coo cee ee nee eee ewnneaeas . 16, 26

Rule 661 ........00.0...........0.4. Lee eae — 16

Rule 751(a)...........0... See hea oa ee aes 20

24 Ill. Rev. Stat. § 1-2-9 (1969)......0........... eee 19

37 Ill. Rev. Stat;

§§ 163(f)(2) and (f)(3) ...........000.. week ae 16

§§ 651 ef seq. 2... eee eae 2...

ne a a 7,30

§ 702-2 (Smith Hurd ed., Pocket Parts 1971).......... 16

38 Ill. Rev. Stat.: :

§§2-7, 2-11, 1-7(L) .. 2... eee. +. 16,17

$8 26-1; 31-1 2 ce cc cc wes ennnwcewss 17

§119-3 2. ee esha” OF

§121-13(a) (1964)... en. / 17

§§ 122-1 ef seq... 2.2. ee .. 16

110 Ill. Rev. Stat. (1969 ed.): .

BO ee rks ew oe bk Bk wee eh eww ees Z2

§ 101-27(b) (1965) (now Rule 607(b)) ..........: ne Va

§ 121-1 (1965) .......0.0.000...0..0.0......... 17

Municipal G@ode of Chicago:

Oh. 11, 981-38 5 ox coe ewes heen s on ena eneeues +

Ch. 193, §1(a) ....... (ny hohe seen ea kenescuess 4

(vi)

McKinney’: s Consol: Laws ef. NY. Anno. (1953 ee :

_ Vol. 16, §6506(2).............0.. 0008000. sees 20

Vol. 16, §§ 6514(2)(b) and (g) 2... 20. te 20

Vol. 29A, Part 3, New York City Criminal Court Act

§§ 40,43, 91; Uniform District Court Act §§ 2006,

DUIS 8 oye ee ee ae we e ee e eee eee pees 37

Vol. 66, §§ 456, 756 (Pocket Parts 1971) ............ 37

Circuit Court of Cook County, General Order No. 17.6, .

“Official Court Reporter”..............%.. ca ewe ee a 9

11 D.C. Code § 741 (Supp. V, 1966) ...............0... 33

“Rules on Admission and Discipline of Attorneys” (110A

i. Rev..Stat. 6 JOU) ¢ «sce 5b oes ee deed asesauy: . 20

Illinois “Medical Practice Act,” 91 Ill. Rev. Stat. §§ a2) |

1A) cg eee es ev eee eee nese eee eeeesess inne 20

Deering’s California Government Code §§ 72195, 69952 .4.... a7

Miscellaneous: |

Note, “The Distinction Between Mala Prohibitia and Mala in

Se in Criminal Law,” 30 Colum. L. Rev. 74 (1930) ..... 21, 22

Note, “Crimes Involving Moral Turpitude,” 43 Harv. L. Rev.

RAT A1929) 5c hee eeu SP SSeCGR GEG eHeee eeeas 21, 22

- Note, “Defending an Illinois Proceeding for Violations of a

‘Municipal Ordinance: The Worst of All Possible Worlds,” .

1 Loyola Chi. L.-J. 86 (1970) ..................... 21

Kamisar & Choper, “The Right to Counsel in Minnesota:

Some Field Findings and Legal-Policy Observations,” 48

Minn. L. Rev. 1 (1963).......... 0.0. c cece euee 1.36

Freed & Wald, Bail in the United States: 1964 (U.S: Dept.

of Justice 1964) ..... ee se ee eer er 34

Jennings, The Flow of Arrested Adult Defendants Through

the Manhattan Criminal Court in 1968 and 1969(Rand

Institute. 1970) Pee Sd wea eaeea sue aben aeaeeeeasegsy 29

Kalven & Zeisel, The American Jury (1966) ok nite he se .. 36

Newman, Conviction: The Determination of Guilt or Inno- 2

cence Without Trial (1966)...................0004. , 33

Oaks & Lehman, A Criminal Justice eer and the Indi-

Ont CLOGS). oc os ee ea eee es oe ees eee ees 33, 34

(vii)

Subin, Criminal Justice in a Metropolitan Court (Office of

Crim. Justice 1966) .......... ‘gee a See eev nee sees 14, 35

The Challenge of Crime in a Free Society, A Report by the

President’s Commission on Law Enforcement and Admin-

istration of Justice (U.S. Government Printing Office

19GT) ee ee ee dee oe ee ee ee se ee eee ee es eee es 39

Task Force Report: The Courts, The President’s Commission

on Law Enforcement and Administration of Justice (U.S.

Government Printing Office 1967) ....-.......... 27, 38, 40

Brief of Petitioner, Williams v. Oklahoma City, 395 U.S. 458

(1969) 2g na eee ee eee es eben meee cere rene evens 36, 38

‘ABA Code of Professional Responsibility Canons 2, 6 (Am.

Jur. 2d “Desk Book,” pp. 81, 103-104 (1970 Cum. Supp.))... . 10

Illinois. Civil Practice After Trial § 7.8 (Ill. Institute for Con- .

temporary Legal Education E. Kionkaed.) ............ 14

Administrative Office of the Illinois Courts, Statistical Bulle-

tin for the Calendar Year 1969 (mimeo).............. 30, 31

The Annual Appropriation Bill of Cook County for the

Fiscal Year 1971 (Approved and Adopted Feb. 26,1971)... 29

The Annual Appropriation Ordinance of the City of Chicago

for 1971, Journal of Proceedings of the City Council,

Dec. 11, 1970, pp. 9570-10148 (as approved) ........... 29

Annual. Report of the Administrator of the U.S. Courts,

The Illinois State Budget Fiscal 1972, submitted to the 77th

General Assembly by Richard Ogilvie, Governor, March 3, -

1971. gow ke eh ee ee BG hoes Hehe eee eee eee Es 29

Report of. the President’s Commission of Crime in the

District of Columbia (U.S. Government Printing Office

1969 (U.S. Government Printing Office)............... 31.

Rules of Procedure for the Trial of Minor Offenses Before

United States Magistrates, Rules 2(d)(3) and- 3(c)(2), 91

S.Ct. 4, 5 OTEY coo oboe eo te Hee oases: ones aes 41

| Statistical Report: Cases, Fees, Fines and Cost, Dec. 1-Nov.

30, 1967-1970 (prepared for the Circuit Court of Cook

County by its Clerk, Matthew Danaher) ........... .. . passim

(viii)

Address by Charles E. Hughes, N.Y. State Bar Ass’n 42nd

Ann. Meeting, in 1919 Proceedings of the N.Y. State Bar: °

Assn 224 ...3.... EtG Sees eevee eeueaeeeeenaes 39

Patrick V. Murphy, “The Role of the Police in Our Modern

Society,” The Record of the Assoc. of the Bar of The .

City of New York, Vol. 26, no. 4, p. 292 (April, 1971) . . .27, 39

Opinions of the Attorney General of Illinois 1912, p.701..... “Ze

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 6061

JACK L. MAYER, a

| Appellant,

THE CITY OF CHICAGO,

Appellee.

APPEAL FROM THE SUPREME COURT OF ILLINOIS

BRIEF FOR APPELLANT

e 2 ‘

Appellant prays that, as a poor person, he be provided

the report of proceedings at his trial so that he can present

certain alleged errors on appeal to the Supreme Court of

Illinois.

OPINION BELOW

The opinion of the Supreme Court of Illinois denying

that portion of Appellant’s motion which requested a report

ee)

/ of _proceedings as a poor person (hereinafter “free tran-

script’) is unreported and is set forth in the Appendix.

(A. 46)* )

yo JURISDICTION TA

hie order of the Supreme Court of Illinois denying

Appellant’s motion for a free Jxanscript was entered Sep-

tember 18, 1970 and was fi n. Notice of appeal to

this Court was filed in the Creat and Supreme Courts of

Illinois on October 20, 1970. Probable Jurisdiction was

noted on February 22,/1971. Jurisdiction is conferred by

the U.S. Constitution, Amendment 14, and 29 U.S.C,

§ 1257(2). ‘

CONSTITUTIONAL A STATUTORY ~*

PROVISJONS INVOLVED |

Amendment 14 to the United States Constitution pro- |

vides that:

“No State shall . . . deprive any person of life,

liberty, or property, without due process of law; -

nor deny to any person within its jurisdiction me

equal*protection afd the laws.”

Rule 607(b) of the Supreme Court of Hlinois (110A IIL.

Rev. Stat. § 607(b)(1970)) provides as follows:

“Report of Proceedings. In any case in. which

the defendant is convicted of a felony, he may peti-

tion the court in which he was convicted for a’

report of proceedings at his trial. If the conduct on

which the felony case is based was also the basis for

a juvenile proceeding which was dismissed so the

—Sfélony case could, proceed, the defendant may

include in his petition a request for a report of pro-

ceedings in the juvenile proceeding. The’ petition

shall be verified by the petitioner and shail state |

facts showing that he was at the time of his convic- .

*Citations to the Appendix are hereinafter designated (A. __)

“

3. eee

tion, and is at the time of filing the petition,

without financial means to pay fOxthe report. If

the judge who imposed sentence, one absence

4 any other judge of the court, finds that the defend-

ant is without financial means with which to obtain

the report of proceedings at his trial, he shall prder

the court reporter to transcribe an original and copy.

of his notes’. The original of the report shall be’

certified by the reporter and filed with the clerk of

the trig court as provided below, and the copy shall

be certified by the reporter and delivered, to the

defendant without charge. The reporter who pre- —

pared a report of proceedings pursuant to an order

under this rule shall be paid the same fee for pre-

paring the transcript as is provided by law for the

compensation of reporters for preparing transcripts

in other cases.” (Emphasis supplied.) Ay

The ordinances of. the City of Chicago, Illinois, defining | .

the crimes with which Appellant was charged, the statutes

and Constitutional provisions of the State of Illinois provid-

- ing Appeftant with an’appeal of right, and the sundry

Illinois Constitutional provisions, statutes, rules and orders

relating to the provision Of transeripts involved are too

numerous to cite here, and are set forth infra, at pp. la-7a.

QUESTION PRESENTED

“May a State, which furnishes court reporters at trial and

grants appeats of right to defendants convicted of non-

felony offenses, constitutionally refuse to provide a free

trial transcript to an indigent defendant convicted of a non- -

felony offense who needs the transcript to have a mini-

mally adequate appeal? (

STATEMENT OF THE CASE

After a two-day jury trial in the Circuit Court of Cook

County, Illinois (A. 3-6), Appellant (hereinafter ‘“‘defend-

ant”) was found guilty of “disorderly conduct” and “‘inter-

fering with a peace officer” in the performance of his

lawful duties, in violation of two ordinances of the City of

Chicago (Municipal Code of Chicago, Ch. 193, § 1 (a) and

Ch. 11, § 11-33, respectively) (infra at 1a). Under these

charges, defendant faced a possible penalty of a $1,000

fine: $500 on each charge. *He was actually fined $506:

$250 on each charge (A. 4, 6). Illinois provides for impri-

sonment for nonpayment at the rate of $5 per day, 24 Ill.

Rev. Stat. § 1-2-9. But cf. Tate v. Short, __. U.S. ___, 91 *

S. Ct. 668 (1971).

‘After his convictions, defendant filed a post-trial motion

seeking a new trial and alleging numerous errors at trial,

including the contentions that the proof was insufficient to

sustain the verdict, and that certain deliberate misconduct

by the prosecutor was egregiously prejudicial ‘and uncon-

scionable (A. 11-23). This motion was denied (A. 25).

; Thereupon, defendant movéd in the Circuit Court of

~€ook County for leave to proceed as a poor person, for the

production of his transcript at public expense, for the

‘appointment of counsel for the purposes of appeal, and for

the waiver of filing fees. After a hearing, the Acting Chief

Judge of the Circuit Court of Cook County found the

defendant to be indigent and unable to afford the tran-

script but denied defendant a free transcript on the sole

ground that “defendant was found guilty of ordinance vio-

lations and that rule 607 of the Supreme Court applies

[only] to. felony cases” (A. 29). Although Illinois by

Supreme Court Rule provides free transcripts on appeal ‘°

indigent persons convicted of a felony, supra at 23 ,

~nowhere provides free transcripts for indigent owieiony

appellants.

Notice of Appeal to the Illinois Supreme Court was then

‘filed in the Circuit Court on* the basis of constitutional

errors at trial. Illinois Constitution of 1870, Art. VI §5

(A. 30). Defendant renewed his motion for leave to appeal

as a poor person, for the production of his transcript, for

the appointment of counsel, and for the waiver of filing

fees. before the full Illinois Supreme Court. Defendant

argued in support. of his. motion that, under the rule of

Griffin v. Illinois, 351 U.S. 12 (1956), and Williams v. Okla-

homa City, 395 U.S. 458 (1969), the Fourteenth Amend-

ment requires a State to afford indigent nonfelony appel-’

lants a free transcript wherever necessary to adequately

present their appeals, and that therefore Rule 607 is uncon-

stitutionally restrictive (R. 1-14).*

Defendant pointed out that two of his grounds for

appeal require that he be furnished a transcript, namely.(1)

the inadequacy of the evidence to support the verdicts, and

(2) the sustained, deliberate and prejudicial.misconduct by

the prosecutor. As to both contentions, the full facts are

‘necessary, not subject to adequate recall, and available only

if a transcript is furnished.

After six months’ consideration of the motion, the .

Illinois Supreme Court denied defendant’s request for a free

transcript and for the appointment of counsel, while

granting the waiver of filing fees (A. 46).**

SUMMARY OF ARGUMENT

The Fourteenth Amendment to the U.S. Constitution

forbids a Stat« from making “invidious discriminations”

among its citizens, and in Griffin v. Illinois, 351 U.S. 12

(1956), this Court held that the failure of a State to

*Citations to the Record are to the certified Record from the Illi-

nois Supreme Court and are hereinafter designated (R. __).

**The times for filing the record in the Illinois Supreme Court have

been continucd until final resolution of the transcript issue by this

Court. Counsel for defendant is the same on appeal as at trial, and

is willing to serve without’ compensation, so the motion for appoint- ~

ment in Illinois .is not raised here.

provide an indigent appellant with a trial transcript, while

making transcripts available to appellants with enough

money to pay for them, is such an “invidious discrimina-

tion.” .Griffin was a felony case, and thereafter the Illinois

_ Supreme Court promulgated its Rule 607(b), which limits

free transcripts to indigent felony appellants: only. In

Williams v. Oklahoma City, 395 U.S. 458 (1969), however,

this Court applied the Griffin rule to a ‘“‘quasi-criminal”

‘traffic ordinance violation, over the objection of Oklahoma

City and the Supreme Court of Oklahoma that Griffin did

| _ not apply to such a case. Defendant’s case here is identical

in all important respects with that in Williams—he is indi-

gent, a transcript of the trial exists, it is the only way to

‘present an adequate appeal, and Illinois denies it to him

solely because he is poor. But now Illinois also denies it

to him in the face of Williams v. Oklahoma City.

For Illinois to deny defendant a free transcript solely

because his convictions were not for felonies is to deny him

‘Equal Protection of the law. Any nonfelony appellant con-

victed. of a. penal offense with enough money to pay the

price gets an adequate appeal, but those without such

_ means do not.: No state can constitutionally provide’ for

appeals from all criminal convictions as a matter of right,

permit wealthy defendants who can afford a transcript to

fully enjoy that right, and at- the same time deny a tran-

script and thereby a full appeal to poor defendants.

{llinofs has also deprived defendant of Due Process of

- Law, for without access to the transcript he is wholly fore-

closed from effectively presenting at least two substantial

contentions to the Supreme Court of Illinois: (1) the

shockingly deliberate and prejudicial misconduct of the

prosecution, and (2) the insufficiency of the evidence to

sustain the convictions. It is clear from the face of these

contentions that if defendant is to have an effective appeal,

he must have access to the transcript. How can an appel-

late process bé ‘“‘due’”’ or fundamentally fair which denies

only the indigent the rudimentary predicate for presenting

we hs TR OE ig) OLE. ERS oe —_

the factual basis of his contentions on appeal—the official

transcript in the court repdrter’s possession?

It is wholly unjustifiable to argue that indigent non-

felony appellants should be denied their Constitutional:

rights to a free transcript because of the speculation that

the cost of providing transcripts to indigents will somehow

enormously “‘burden’”’ the State. Statistical.analysis reveals

this fear to be totally illusory; the number. of nonfelony

criminal appeals is quite small (dwindling as the penalty

gets smaller), the number involving indigents and also

requiring transcripts even smaller, and the “demand”’ for

(or number of) nonfelony appeals is, as will be shown,

almost totally inelastic with respect to the provision of free

transcripts to indigents. Moreover, most nonfelony trials

are very short and hence the transcripts would cost rela-

tively little. And the supposed ‘‘burden”’ of providing indi-

gents with free transcripts for all penal offenses, whether

ordinance or statutory in origin, is one which at least

several of our most populous States have aay decided

to assume.

The Constitutional protections insured by the availability

’ of a transcript should be available to all persons convicted

of an offense, regardless of the severity of« the. punish-

ment, and regardless of whether they receive a suspended

-sentence, probation, a term in jail or fine. To one too poor

to pay for a $300 transcript, a $1,000 fine is as severe a

penalty as a term in jail. Certainly it is far more onerous

than a suspended sentence or probation, Moreover, the risk

of collateral civil disabilities is substantial, and the stigma

of an offense follows the offender regardless of the sentence

received. Because of these facts, no one unjustly penalized

_ by the criminal law should be denied a transcript, and

hence substantial justice, because of his poverty.

ARGUMENT

I. SIMPLY BECAUSE AN INDIGENT APPELLANT

WAS CONVICTED OF NONFELONY OFFENSES,

A STATE MAY NOT CONSTITUTIONALLY DENY

HIM A FREE TRIAL TRANSCRIPT WHERE SUCH

TRANSCRIPT IS NECESSARY TO EFFECTIVELY

PRESENT HIS CONTENTIONS ON APPEAL.

A. The Constitutional Standard: a convicted

indigent must be afforded as adequate an

appeal as a person with funds. |

The Fourteenth Amendment to the United States Consti-

tution forbids a State to “deny to any person within its

jurisdiction the equal protection of the laws” or to “deprive

any person of life, liberty, or property without due process

of law.” (Supra at 2.) Fifteen years ago, in Griffin. v. -

Illinois, 351 U.S. 12 (1956), this Court fleshed out those

_ words by holding that a State with an appellate system

which makes available: trial transcripts to those who can

afford them must provide a “means of affording adequate

- and effective appellate review to indigent defendants.” Jd.

at 20. ‘“Destitute defendants,” the Court said, “must be.

afforded as adequate appellate review as defendants who

- have money’ enough to buy transcripts.” Jd. at 19 (empha-

sis supplied). “‘There can be no equal justice where the

kind of trial a man gets depends on the amount of money

he has.” Jd. at 19.

In Burns v. Ohio, 360 U.S. 252 (1959), this Court reaf-

firmed the Griffin 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.”” /d. at 257. “In

_ all cases the duty of the State is to provide the indigent as

adequate and effective an appellate review as that given

appellants with funds—the State must provide the indigent

defendant with means of presenting his contentions to the

appellate court which are as good as those available to a

non-indigent defendant with similar contentions.” Draper

v. Washington, 372 U.S. 487, 496. (1963) (emphasis sup-

plied). Accord: Williams v. Oklahoma City, 395 U.S. 458

(1969); Roberts v. LaVallee, 389 U.S. 40 (1967); Long. -

v. District Court of Iowa, 385 U.S. 192 (1966); Lane v.

Brown, 372 U.S. 477 (1963); Smith v. Bennett, 365 U.S.

708 (1961); Eskridge v. Washington, 357 U.S. 214 (1958);

Douglas v. California, 372 U.S. 353 (1963).

B. If defendant had funds, he would have a tran-

script and a full appeal. |

Illinois grants an appeal of right to indigent defendants

convicted of “‘disorderly conduct,” “interfering with a peace

officer,” or any other offénse, whether prosecuted by the ~—

State or by the municipality. (/nfra at 3a.)! Illinois also

provides court reporters in all trials in the Circuit Courts,

which are the lowest trial courts in Illinois. 37 Ill. Rev.

Stat. §§ 651 et seg. (Smith-Hurd ed., 1970).2 See, e.g.,

Circuit Court of Cook County, General Order No. 17.6, ©

“Official Court Reporter.” A court reporter was in fact

present and took notes at defendant’s trial. Before these

' notes can be made up into a transcript, certified and_

delivered to defendant, a cash sum in the amount of

approximately $300 must be paid to the Transcript Depart-

‘ment of the Clerk’s Office of the Circuit Court of Cook

County, Illinois.

1Whether the appeal lies with the Illinois Supreme Court or with —

. the Illinois Appellate Court depends upon the nature of.the case or

the nature of the contentions raised. Illinois Constitution of 1870,

Article 6, §§5, 7 (infra at 3a). If a case is erroneously appealed to

the wrong court, it is transferred without any loss of rights to the -

correct court. 110A Ill. Rev. Stat. § 365 (Illinois Supreme Court

Rule 365). | .

2All citations to Ill. Rev. Stat. are, unless otherwise indicated, to

the State Bar Association Edition (1969).

3Estimate received by counsel from the court reporter. The rate

for transcription is $.25 per 100 words, 37- Ill. Rev. Stat. § 655 (infra

at 6a-7a), or $.75 per page.

Because defendant is indigent, and solely because of that

. fact, he is deprived of that transcript on appeal.

C. Without a transcript, defendant will be denied

: the essence of his appeal.

From the face of deferdant’s contentions, it is clear that

he must have the transcript to have any meaningful appeal.* -

He alleges that he was unjustly and improperly convicted,

that there were grievous errors committed at his trial which

4The Fourteenth Amendment has been held to require an indigent

appellant to be supplied with a transcript where it is available regard-

less of the demonstration of a ‘“‘need”’ for it, because to force an indi-

_gent to rely on memory is inherently unequal and unfair. Long v.:

District Court of Iowa, 385 U.S. 192, 194-195 (1966); Gardner v.

California, 393 US. 367, 369-370 (1969); Milani v. Illinois, 386 US. -

12 (1967), reversing summarily People v. Milani, 34 Ill. 2d 524 (1966);

Roberts v. LaVallee, 389 U.S. 40,(1967). Without a transcript, for

instance, the ability to reverse for “plain error” is lost. See Hardy v.

United States, 375 U.S. 277, 280, 288-289 (1964); Illinois Supreme

Court Rule 615(a), 110A Ill. Rev. Stat. §615(a). A transcript is “the

obvious starting point” for appeal, Gardner v. California, 393 US.

367, 370 (1969), even for counsel that represented the defendant at

trial. To deny trial counsel the trariscript makes his memory—and

not the court’s full review or the fresh view of another counsel—the

final arbiter of the points on appeal. Such inequality was held uncon-

| Stitutional in Eskridge v. Washington Prison Board, supra, and Draper

v. Washington, supra. But even beyond these considerations, the lack

_ of a transcript for an indigent’s appeal inevitably involves counsel in

‘a moral and ethical dilemma—a double standard of responsibility |

between paying clients and indigent clients. See e.g., ABA Code of

Professional Responsibility Canons 2, 6 (Am. Jur. 2d “Desk Book, a

pp. 81, 103-104 (1970 Cum. Supp.)). This double standard also vio-"

lates counsel’s sense of minimal professional responsibility:

“No. responsible retained lawyer who represents a defendant

‘at trial will rely exclusively on his memory (even as supple-

mented by trial notes) in composing a list of possible trial

errors which delimit his appeal... . An appointed. lawyer,

whether or not he represented the defendant at trial, needs

a complete trial transcript to discharge his full responsibility

of preparing [the appeal].” Hardy v. United States, supra at

288 (Goldberg, J., concurring).

No showing of “need” for a transcript is therefore compatible with

the Constitution.

suiade that trial a mockery of justice. As stated in defend-

unt’s post-trial motion (A. 11-23),-it is expected the tran-

s-tipt will show that defendant, a third-year medical student

without means, attended a march and rally conducted by

various anti-war groups in Chicago, including SDS, not as

a participant but as a “‘medical presence” (providing first

aid assistance) under the aegis of the “Medical Committee |

for Human Rights,” a national organization of doctors and

medical students devoted to humanitarian causes. Defend-

2nt is not and never has been a member of SDS or any

affiliated group. After a while, the marchers “‘broke”’ and

ran. Defendant came upon an injured person lying in the

street and, after a preliminary examination, diagnosed that

‘ae injured man, who was paralyzed from the waist down, .

had a “probable spine injury.”” Unheeding his protestations

not to move the injured man without a stretcher, the police

started to ‘drag him off.’ At this point defendant, in an

attempt to keep the victim’s spine “stable,” placed his

hands on the victim’s stomach—and. was thereupon arrested

for disorderly conduct and interfering with the police.

Over his protestations that this conduct did not constitute —

a crime, defendant was convicted by a jury. The defense

of “‘necessity”—that his conduct was reasonably designed

to avoid a great injury of overriding justification was dis-

allowed at trial (A. 16).

A transcript of proceedings is necessary in order for

defendant to prove at least two points on ‘appeal. Most

importantly, he urges that the prosecutor, who at trial was

still limping from an injury sustained during this very

‘ demonstration, was guilty of a sustained course of deliber-

ate misconduct, which flagrantly prejudiced the jury against

defendant. See Berger v. United States, 295 U.S. 78, 88

(1935); People v. Stathas, 356 Ill. 313, 321, 190 N.E. 661,

664 (1934). The burden is on defendant to prove this mis-

conduct on appeal, and there is simply no way to do this

without the transcript. Without it, defendant is unable

to. effectively support counsel’s sworn statements to the

Supreme Court of Illinois that (R. 10-11):

me .

“Throughout the trial, the prosecutor elicited tes-

timony from witnesses regarding alleged violence at

the march far.removed from the immediate events

surrounding appellant’s alleged offense, regarding

the political character of the march and regarding

the fact specifically that Richard Elrod [now Sheriff

of Cook County] had been injured during that par-

ticular march.. The ingenuity and calculation with

which the prosecutor steered testimony in these

directions was quite remarkable. Consequently, a

significant portion of the trial was occupied by

defense counsel objections to these prejudicial and

irrelevant lines of questioning. Defense counsel’s

objections were repeatedly sustained by the trial

court. But the prosecutor was undeterred in his

efforts to tar appellant before the jury with the

brushes of anti-Americanism, violent proclivities and

Richard Elrod’s spinal injury. The prosecutor was

so insistent in pursuing this course that these

insinuations—in his very questions—time dnd again

were placed before the jury, before defense counsel

could object and the court could strike'the questions.

In his closing argument to the jury, the - piosecu-

'. tor repeated and enlarged upon these improper

insinuations.

“The prosecutor’ s conduct flagrantly violated the

Canons of Ethics.”

| Defendant also alleges that the evidence was insufficient

to sustain his conviction; more precisely, that certain testi-

mony by the police was inherently incredible and that his

defense of “‘necessity’—that his conduct was justified by

. the need to prevent great harm—was made out as a matter

of law (A. 11-19). The net of this contention is that the

Illinois Supreme Court should not reverse and remand for

a new trial, but should discharge defendant entirely without

subjecting him to a second prosecution. |

Without a transcript, defendant is wholly unable to sub-

stantiate either of these contentions in appealing on the

merits to the Illinois Supreme Court and must, as a practi-

cal and legal matter, forsake them.5 Counsel elaborated

this predicament in a sworn statement to that count (Sup-

plemental R. 2, 2):

“To sustain the allegations of error regarding

insubstantiality of the evidence and the prejudicial

impact of the prosecutor’s misconduct on ‘the record

considered as a whole, the events at trial must be

set out in the record in extensive and precise detail.

Unless appellant has a full transcript he must rely

essentially on his own and his trial counsel’s memory.

But because the trial lasted for three days,.it is clear

that many details which might ultimately be central

to establishing (or, of course; rebutting) appellant’s

contentions have vanished from memory.’”

Defendant’s need for a transcript is therefore patent. We

turn to consider the effect of Illinois’ alternate procedures

on this need.

D. There is no adequate alternative to the

transcript in this appeal.

It has long been recognized that a State need not -

“purchase a stenographer’s transcript in every case where

a defendant cannot buy it.” Griffin v. Illinois, 351 U.S. 12,

20 (1956). “Alternative methods of reporting trial proceed-

ings are permissible if they place before the appellate court

an. equivalent report of the events at trial from which the

appellant’s contentions arise.” Draper v. Washington, -372 _

U.S. 487, 495 (1963). The fact that a rich person ‘‘may

choose to waste his money . .. does not mean that the

$Before an Illinois reviewing court can reverse on the grounds

urged, it must consider “all the evidence,” People v. Gavurnik, 2 Ill.

2d 190, 196, 117 N-E.2d 782, 785 (1954), the entire record, People

v. Gonzales, 40 Ill. 2d 233, 242, 239 N.E.2d 783 (1968), and “where

the record on. appeal is incomplete, the reviewing court will indulge

every reasonable presumption favorable to. the judgment appealed

from.” People v. Rockett, 85 Ill. App. 2d 24, 228 N.E.2d 219, 223

Ges

State must waste its funds... .” Jd: at 496. If adequate,

‘an agreed statement of the facts, a full narrative statement

based on the trial judge’s minutes or a bystander’s ‘bill. of

exceptions could all suffice. :

The Illinois Supreme Court has _adopted procedures for

securing such substitute means of appeal— 2n agreed state-

ment and a “settled” statement. Hlinois Supreme Court ©

Rule 323(c) and (d) (infra at 4a). But ‘whatever the

merits of these substitutes generally,© they are obviously

completely inadequate here—they cannot present the mini-

mum required factual basis for supporting defendant’s con-

tentions on appeal. If such substitutes were used, defend- ©

ant would not be “heard. > Such “process” could hardly

be deemed “due.” eu

- Rule 323(c) provides that the appellant ' may ‘prepare a

stoposed’ report of proceedings “from the best available -

sources, including recollection.”? This ‘ ‘proposed report,”

if contested, is “settled” by the trial court and- the report | '

so “‘settled’’ is deemed “‘accurate” (infra at 4a). But

defendant has amply demonstrated that the nature of his |

contentions requires him ‘to present the Illinois Supreme

Court with the kind of. exact record which is wholly

.beyond his or anyone ’s capacity to reconstruct without

a transcript. Moreover, if defendant had attempted. to

proceed under this Rule, he would, have been p laced in

a Procedural trap; if he had submitted a (negessarily. woe-

{

6See Illinois Civil Practice After Trial £78, (I\dnstitut for Con-

temporary Legal Education, E. Kionka, ed. 1970). (casting doubt

on the adequacy of the procedure: for a settled statement); Subin,

Criminal Justice in a Metropolitan Court 83 (Office of Criminal...

_ Justice 1966).

7An “agreed” statement would come from the se} sources.

Here, however, as the prosecuting attorney in his capacity“4s oo

for Appellee now concedes in this Court, agreement on the facts “

the instant case might be difficult or impossible” (Motion to Dismiss

or Affirm at 6), because of the contention raised as to his own n preju-

dicial misconduct. -

> ¢

- 0

( 15

fully inadequate) “‘proposed report,” and it was “‘settled”’

or “‘agreed,” he probably would be held to have bound

himself to it by conduct inconsistent with the assertion of

a right. See, eg, McCottrell v. Benson, 32 Il. App. 2d 367,

178 N.E.2d 144 (1961).

It is furthermore true that under Illinois law the burden

of proof rests upon the Appellant to “substantiate matters

contained in the contested report.” People v. Andrews, 82

Ill. App. 2d 59, 227 N.E.2d 91, -94 (1967). Thus in”

“settling” the statement, the weight is not distributed

evenly; it is tilted against the defendant. Not only is he .

forced to rely, as here, upon fleeting and incomplete

memory, but then the burden is placed upon him to sub-

stantiate what it is he can barely, if at all, recall. And he

must do so in the face of hostile and. differing recollections

by the prosecutor, and possibly even by the court. Unless

their recollection agreed with his, his version— no matter

how- honestly prepared—would not be accepted. Such a

procedure might be compatible with due process for Gen-

eral Motors, which. can hire a team of stenographers to .

mark down the testimony during trial. But such a proce-

dure, applied: to an indigent and his counsel, does not evén

_ supply.a rudimentarily | fair procedure. It forces them to

- choose between being ‘advocates and being reporters; no —

one can transcribe and conduct a trial at the same time.

Thus it is clear that defendant has ho “means of’ present-

ing,his contentions to the appellate Court which are as good

as those available to a-non-indigent defendant with similar "

contentions.” ‘Draper v. Washington, 372 U.S. 487,496

(1963). Indeed, without the transcript, he has no means

of adequately presenting these contentions at all. Such a

total deprivation of the right of effective appeal not only -

sale an “unreasoned distinction” between rich and poor

n violation of’the Equal Protection Clause, but it must also

“effend the deepest presuppositidéns of our society” and

violate ‘Bue Process as well. Griffin v. Illinois, 351 U. S. 12,

22 (1956) (Frankfurter, J., concurring). .

> EERE RR Oey

SE eR A Il TERT,

Having deterntined that no alternative to his transcript

could provide defendant with an “adequate and effective”

appeal, we turn now to consider whether Illinois may con-

stitutionally refuse to afford defendant that transcript.

E. | Illinois may not deny free transcripts to indi-.

gents convicted of nonfelony offenses.

- Illinois Supreme Court Rule 607 (b) grants free tran-

scripts for use on appeal to-all indigents convicted of a

“felony,” but denies free transcripts to all indigents con-

victed of offerlses which do not qualify as “‘felonies”—which ~

eliminates all offenses not. punishable ‘by over a year’s

: imprisonment. Thus although defendant was convicted

of violating two penal municipal ordinances, ‘disorderly

conduct” and “interfering with a police officer,” Illinois

does not furnish him with a transcript on appeal even

though, as has been shown, he is indigent and must have

his transcript to adequately present his appeal.? These _

8The line between “felony” and “misdemeanor” under Illinois law

generally turns on whether the statute violated provides for imprison-

ment for over one year. 38 Ill. Rev. Stat. §§ 2-7, 2-11, 1-7(L); People

v. Bain, 359 Ill. 455, 195 N.E. 42, 49. (1935). Thus a “felon”

sentenced to probation gets a free transcript: while a “‘misdemeanant”

sentenced to a full term in jail gets none. Besides. “felons,” Illinois

grants free transcripts to all indigent “minors” convicted of “delin-

quency,” regardless of whether the “delinquency” would otherwise

be considered a “felony” or a “‘misdemeanor.”’. 37 Ill. Rev. Stat.

§ 702-2 (Pocket Parts 1971); Illinois Supreme Court Rule 661 (infra

~ at Sa); In Re Boykin, 39 Ill. 2d 617, 237 N.E.2d 460 (1968).

Tronically, “delinquency” even includes “threatening” to violate a -

“municipal ordinance.” Also, any indigent appealing from a “post-

conviction” hearing has a right to a free transcript both of his hearing

and also of his trial. Illinois Supreme Court Rule 615; 37 Ill. Rev.

- Stat. §§ 163(f)(2), (f)(3). “Post-conviction” -relief in Illinois is

limited to felony prisoners sentenced to the penitentiary who allege |

denial of their constitutional rights. 38 Ill. Rev. Stat. §§ 122-1 ef

seq.; 1-7(L). This crazy-quilt patchwork is itself wholly —

_ and uncor stitutional.

The Illinois history on transcripts is noteworthy. Before Griffin,

free transcrjpts ‘vere provided to indigents only in capital cases.

_. Griffin v. Illinois, supra at 14. Sometime after Griffin, a “felony”

ordinar:ces are called “‘quasi-criminal” under ‘illinois law,

a designation which means the offenses are considered.

“criminal in nature” but “civil in form.” !®

1. Williams v. Oklahoma City controls this case.

Whatever doubts may have been entertained about the

scope of Griffin v. Illinois, a felony case, before 1969, it

is now perfectly clear that Illinois’ attempt. to. deny

defendant a free transcript solely because he was not

convicted of a “felony” violates the Fourteenth Amendment;

such an attempt runs directly afoul of this Court’s decision in

Williams v. Oklahoma City, 395 U.S. 458 (1969). There, °

the indigent petitioner. was convicted for violating a city

ordinance against drunken driving, denominated “quasi-

criminal” in nature, and received a 90-day jail sentence and

a $50 fine. His motion for a free transcript for appeal was

denied by the Court of Criminal Appeals on the ground

that the “Fourteenth Amendment does not mandate ‘that

‘an indigent person, convicted for a violation of a city ordi-

nance, quasi-criminal in nature and often referred to as

case, the Illinois legislature, in its new Code of Criminal Procedure,

amended the rule to provide broadly for free transcripts to indigents

“upon imposition of any sentence in a criminal case.” 38 Ill. Rev.

’ Stat. § 121-13(a) (1964). Under a provision which allowed certain

portions of the Code to be superseded by Supreme Court Rule, 110

Ill. Rev. Stat..§ 121-1 (1965), this broad right was almost immediately

restricted to felony cases only, by action of the Illinois Supreme

Court. 110 Ill. Rev. Stat. 101-27(b) (1965) (now Rule 607(b)).

10 Village of Maywood v. Houston, 10 Ill. 2d 117, 139 N.E.2d 233

(1956); Village of Park Forest v. Bragg, 74 Ill. App. 2d 87, 220

N.E.2d 61 (1966). These offenses are called “misdemeanors” if

prosecuted by the State. 38 Ill. Rev. Stat. §§ 2-11, 26- i, 3i- 1. The

Illinois Supreme Court has pointed out that:

“The proceeding is not strictly or exclusively civil or criminal,

but resembles: both in some respects. For this reason,

problems in this area cannot: be solved by a mere labeling

process, and the decisions of the courts, in Illinois and else-

where, do not always have apparent logical consistency.”

Village of Maywood v. Houston, supra, 139 N.E.2d at 234.

a petty offense, is entitled to a case-made or transcript at

city expense in order to perfect an appeal from said con-

viction.’” 395 U.S. at 459.

This Court, citing Griffin, reversed in an unanimous per

curiam opinion, and stated that since Oklahoma has estab-

_. lished the right to appellate review of drunken driving con-

victions, the State cannot “impede open and equal ‘access

to the courts... [so that it] wholly denies any right of |

appeal to this impoverished petitioner, but grants that right

only to appellants from like conyictions able to pay for the

preparation” of a trial transcript. 395 U.S. at 459-460.

Williams v. Oklahoma City made clear that Griffin applies

to penal offenses in municipal and traffic courts as well as

in felony courts, and compels Illinois to afford defendant

a free transcript here. The characterization of a penal

offense by one name or another. is irrelevant to an indigent

person’s right to equal and adequate review. An “invidious

discrimination” is not less so because the possible penalty

for the offense is imprisonment for over one year. The

Fourteenth Amendment applies regardless of the size of the

possible penalty or the penalty actually imposed. See e.g.,

Groppi v. Wisconsin, 400 U.S. 505 (1971); Yick Wo vy.

- Hopkins, 118 U.S. 356 (1886) ($10 fine). As this Court

_ held in Smith v. Bennett, 365 U.S. 708, 712 (1961), in

voiding a $4 filing for habeas corpus applications: |

“We shall not quibble as to whether in this

context it be called a civil or a criminal action. ...

The availability of a procedure to regain liberty lost

through criminal process cannot be made contingent

upon a choice of labels.” .

2. Williams v. Oklahoma City cannot be distin-

guished on the basis of the-penalty imposed

or the seriousness of the offense.

The offense in Williams v..Oklahoma City was “drunken

driving” and the penalty was 90 days in jail and a $50 fine.

Defendant here was convicted of “disorderly conduct” and

“interfering with a peace officer,” was subject to a fine of

$1,000 on both charges, and was actually fined $500. .

Being indigent, defendant cannot pay the fines, and Illinois .

law provides that failure to pay a fine subjects defendant

to imprisonment at the rate of $5 per day. 24 Ill. Rev.

Stat. § 1-2-9 (1969) (infra at 7a). Thus under Illinois law,

defendant faces 100 days in jail, almost - one-third of a

year.!!

. No distinction between this case and Williams v. Oklahoma

City can be based on the fact that defendant here faces, at

lease initially, the penalty of a serious fine rather than

imprisonment. As noted, imprisonment for nonpayment is

a distinct and present possibility under Illinois law even after

Tate v. Short, _.__U.S.__, 91 S.Ct. 668 (1971). But

even apart from that, ‘no distinction between jail and a

serious fine is tenable. Who is to say whether a poor person

would prefer 30 days, or 60 days, or 90 days, to $500 or

$1,000 as a penalty? The imposition of a $1,000 fine, or a

- $500 fine, on a poor person (or even on a person of moder-.

ate méans for that matter), is a substantial and serious bur-

_ den to the conduct of everyday life. A poor person’s

interest in avoiding that burden is “‘conipelling.” The State’s

interest in raising revenue by taxing transcript costs is, by

comparison (and especially as applied to those unable to

held that a State may not imprison a ‘person for failure to pay:a fine,

if that failure arises solely from an inability to pay, without first

resorting to some alternative collection procedure.’ The Court was

caréful to indicate, however, that the decision is not “to be under-

stood as precluding imprisonment as an enforcement method when

alternative means are unsuccessful despite the defendant’s reasonable

efforts to satisfy the fines by those means.”’ Jd. at 672. While that

"contingency was ieft an open question, the execution of defendant’s

sentence here by the Illinois courts will not “await the presentation

of a concrete case” in this Court. Thus the jail “‘contingency”’ is very.

real and immediate to him. Because of this inescapable fact; Williams

_ v. Oklahoma City is indistinguishable on the basis of the ileal

imposed and controls here.

pay), ‘weak and insubstantial. Cf. Boddie v. Connecticut,

| U.S. _ , 91 S.Ct. 780 (1971). See discussion,

chapter Ill, "post.

Most importantly, the civil consequences of convictions

for these types of offenses are broad-ranging, nebulous, and

serious. Defendant here is an impecunious medical student

who in a few years will apply for a license to practice

medicine. In New York, where he currently resides, an

applicant must submit proof of “‘good moral character.” 16

McKinney’s Consol. Laws of N.Y. Anno. §6506(2). See

also Illinois “Medical Practice Act,’ 91 Ill. Rev. Stat. § -

4(2); 14(2).!2 In New York, a physician’s license ta practice ©

medicine can be revoked upon tHe showing of convic-

tion of “a crime” or for ‘“‘unprofessional conduct.” 16

McKinney’s Consol. Laws of N.Y. Anno. 88 6514(2)(b) and

(g). The standards of enforcement are vague and largely

discretionary. There is no way of telling whether defend-

ant’s convictions here will preclude him from the practice

of his chosen profession. Such a consequerice makes absurd

_the contention that a penal offense is not serious simply

because it does not directly involve a term in jail.'°

‘It would certainly be hard to try to-erect a distinction

between this case and Williams v. Oklahoma City based upon

the relative moral “‘seriousness” of the offenses charged.

Being caught at “drunken driving” certainly involves no

more (indeed probably less) moral stigma than knowingly

12Comparé attorneys’ “Rules on Admission and Discipline of.

Attorneys,” 110A Ill. Rev. Stat. § 701 fa); cf. In Re Anastaplo, 18 Ill.

2d 182, 163 N.E.2d 429, aff'd 366 US. 82 (1961) (refusal to answer

questions concerning possible “subversive” activities is sufficient evi-

dence of lack. of “good moral character”). . The standard for disbar-

ment is a practice “which tends to defeat the administration of

"justice or to bring the courts and the. legal Profession into disrepute.”

110A Ill. Rev. Stat. § 751(a).

13Furthermore, the fact that these offenses appear | on defendant’s

police criminal record, which often is furnished to prospective ©

employers, is itself a disability of important magnitude. See Jn Re

Gault, 387 U.S. 1, 24-25 (1967). . |

“interfering with a police officer” in the, performance of

his duties, and probably less than engrging in “disorderly .

conduct” or creating a “breach of the peace” as well. Both

“interferring” and “‘disorderly conduct” are ‘“‘penal” laws,'*

involving a certain degree of ‘‘moral delinquency” in com-

mon usage and also as that term has been applied. Cf.

Schick v. United States, 195 U.S. 65 (1904); Wisconsin v.

Constantineau, 400 U.S. 433 (1971). They are offenses

which the common law would probably have categorized as

“malum in se,”’ not “malum prohibitum”’ being acts of puta-

tive “moral turpitude.” Cf. District of Columbia v. Colts,

282 U.S. 63 (1930) (“reckless driving” subjecting offender

to $100 and 30 days is malum in se because it is an act of

“obvious depravity.’’)'> That is, it doesn’t take the existence

of any law for one to know that it is wrong to interfere with

"a policeman performing his duties or even to disturb others

by disorderly conduct. Moreover, how can an offense which,

if charged by the State rather than by the City, subjects a

citizen to a year in jail'® be anything but stigmatizing and

14See Kennedy v. Mendoza-Martinez, 372 US. 144, 168-170

(1963); “Defending an Illinois Proceeding for Violations of a Munici-

pal Ordinance:. The Worst of All Possible Worlds,” 1 Loyola a

L. J. 86 (1970).

1SSee also United States v. Smith, 420 F.2d 428 (sth Cir. 1970)

(‘possession of untaxed whiskey” is an act of “moral turpitude”);

Note, “The Distinction Between Mala Prohibitia and Mala in Se in

.- Criminal Law,” 30 Colum. L. Rev. 74, 77-78 (1930); Note, “Crimes

Involving Moral Turpitude,” 43 Harv. L. Rev. 117, 149-120 (1929).

Forms of “disorderly conduct,” usually involving sexual inteiest or

display, have been held to be acts of “moral turpitude”’ subjecting |

the actor to deportation or exclusion from the country under the

immigration laws. See Babouris v. Esperdy, 269 F.2d 621 (2d Cir.

1959); Wyngaard v. Kennedy, 111 U.S. App. D.C. 197, 295 F.2d 184

(D.C. Cir. 1961).

16Both “interfering” nd “disorderly” are State as well as city

offenses; indeed the City’s ordinances were modeled on the State

statutes. With “disorderly,” the penalties are the same, but with

“interfering,” the State penalty is greater. See infra at 1a-2a. Whether

the police choose to bring charges under the State or the city provi-

sions is entirely in their discretion.

serious? Cf. In Re Gault, 387 U.S. 1 (1967); Jn Re Winship,

397 U.S. 358, 367 (1970).

Illinois has indicated the importance it ascribes to trials

for violations of penal municipal ordinances by providing for

_ the right to a trial by jury.!” Defendant was tried by jury »

here (A. 3-6). This conclusion by the State as to the

importance of the just resolution of these types of violations

should be considered determinative by this Court of. any

possible contention that defendant’s convictions are some-

how too “trivial” to merit’ protection by the Fourteenth

-Amendment.'® Cf. Duncan v. Louisiana, 391 U.S. 145, 160

(1968). It is absurd to say that an offense is ‘‘trivial”’ when

the State has deemed it significant enough to provide a jury

for the protection of the citizen. Cf. Waller v. Florida, 397

U.S. 387 (1970) (double jeopardy bars state trial after muni-

cipal trial). Such an erroneous notion of “triviality”

was firmly rejected recently in Tate v. Short, ___ U.S.

—___, 91 S.Ct. 668 (1971), in which this Court. unhes-

itatingly applied the Equal Protection Clause to a fine

of $425 imposed for some “‘traffic offenses,’ where an

. indigent was incarcerated for failure to pay. Defendant here,

17Although Illinois law,’on the point is not totally explicit, it

seems-clear that, whether these ordinance violations are considered

“civil” or “criminal,” such a right is given by Article II, §5 or §9 of

the Constitution of Illinois 1870 (infra at 2a-3a). Opinions of the

Attorney General of Illinois 1912, p. 701; 110 Ill. Rev. Stat. § 64

(1969); 110A Ill. Rev. Stat. § 285 (small claims); People v. Ford, 45

Ill. App. 2d 289, 196 N.E.2d 1 (1963).

18This would not mean that a line could not be sa in a later

case such as was drawn in Ex Parte Johnson, 20 Okla. ‘Cr. 66, 201

p. 533, 537 (1921), at a $20 fine, which would janet parking

tickets and minor traffic infractions. These types of violations are

most often subject to “summary disposition” and do not fall within

the jury requirement. Also, they are considered “regulatory” rather

. than “penalS*-begause ,they are sanctions ancillary to a-legislatively-

created system of-regulation of conduct which would not otherwise

be deemed subject to punishment. See Note, 30 Colum. L. Rev. 74 .

(1930); Note, 43 Harv. L. Rev. 117 (1929), Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-170 (1963).

an indigent faced with the severe burden of a substantial

fine, the loss of his good: name and reputation, the possible

loss of his chosen profession, and possible incarceration for

non-payment, deserves no-less.

Therefore, defendant should have received a free tran-

- script under the prior decision of this Court in Williams v.

~ Oklahoma City.

Il.

REGARDLESS OF THE CONTROLLING FORCE

OF WILLIAMS V. OKLAHOMA CITY, BOTH

EQUAL PROTECTION AND DUE PROCESS PRIN-

CIPLES REQUIRE ILLINOIS TO FURNISH A

TRANSCRIPT TO AN INDIGENT NONFELONY _

APPELLANT.

As has been shown, the decision of this Court in Williams

v. Oklahoma City, 395 U:S. 458 (1969), requires that [llinois _

furnish defendant with a free transcript so that he may

enjoy an “‘adequate and effective” appeal. Even apart from

the controlling impact of Williams, however, many other

decisions of this Court, elaborating the basic nature of the

equal protection and due process guarantees, support the

view that appellant must be provided with a free transcript.

Transcript cases in. this Court have tended not to distin-

guish between the Equal Protection and.Due Process clauses.’

The reason is that both concepts often apply with equal

force. As the Court stated in a Griff n v. Illinois (351 U.S. at

t7):

din

“In this fredifion, our own constitutional guar-

antees of due process and equal protection both call

for procedures in criminal trials which allow no

invidious discriminations between persons and dif-

ferent groups of persons. Both equal protection and

due process emphasize the central aim of our entire

judicial system—all people charged with crime must,

so far as the law is concerned, ‘stand on an equality

before the bar of justice in every American court.’

. | 24

° Chambers v. Florida, 309 U.S. 227, 241. See also,,.

- Yick Wo v. Hopkins, 118 U.S. 356, 369.” See also .

Williams v. Illinois, 399 U.S. 235, 241-242 (1970).

This case tests whether * ‘in every American court” means

what it says. - .

A. The Equal: Protection Clause: Illinois Transcript

Policy Denies Equal Protection to Poor Persons

Appealing From Nonfelony Convictions.

Equal Protection requires that a State, in pursuing its

proper purposes, must avoid benefjting or depriving cér-

tain groups and not others where to do so is not in rational

furtherance of its proper goals.'? Where fundamental con- —

stitutional rights are at stake—here the citizen’s right to be

free of unwarranted penal sanction—or where the persons

affected are not “voluriteers” in the judicial process—here

indigents convicted df crime—this Court “will squint hard”

at the State’s classification and require a “‘compelling inter-

est” to justify:the State’s burden on or failure to benefit

‘one class. .See Shapiro v. Thompson, 394 U.S. 618, 634

~ (1969).

It has long been clear that “money hurdles” to the judi-

cial machinery work an intolerable and unjustifiable burden

in fact upon one class—those too poor to pay—without hav-

ing even the virtue of satisfying the revenue punpese behind .

the money requirement: +

“Courts are the central dispute-settling institutions.

in our society. They are bound to do equal justice ~

under law, to rich and poor alike. They fail to per-

form their function-in accordance with the Eqfal

Protection Clause if they st their doors to indigént .

' plaintiffs ore: ‘Where money, determines not

19While the Illinois rule may seem non-discriminatory on its face,

- this Court has uniformly found a transcript- -cost ‘law such as Illinois’

“grossly discriminatory in its operation” as applied to indigents.

Griffin v. Illinois, supra, at 17, n, 11; Williams v. Illinois, 399 U. S.

235, 242 (1970). L

~ merely ‘the kind of trial a man gets,’ Griffin v. Illi-

nois, supra, at 19, but whether he gets into court at

all, the great principle of equal protection becomes

a mockery. A State may not make its judicial

processes’ available to some but deny them to others

simply because they cannot pay a fee. .Cf. Harper v.

Virginia Board of Elections, 883 U.S. 663 (1966).”’

Boddie v. Connecticut, U.S. , ., 91

S.Ct. 780, 792 (1971) (Brennan, J., concurring).

It ill behooves the great purpose Illinois has set for itself—

to ensure justice by previding official court reporters and _

the right to appeal to all 5 persons charged with any offegse—

to draw that “unreasoned” and “invidious” line between

- rich ‘and poor citizens trapped in the criminal process by =~

itself erecting a “money hurdle” to full access to its appel-

late courts in all cases which are not classified as “felonies.”

Griffin v. Illinois, 351 U,S. at 23 (Frankfurter, J., concur-

ring). See Harper v. Virginia Board of Elections, supra; Tate

v. Short, U.S. , 91 S. Ct. 668 (1971). Imposing .

a money hurdle to an appeal is no less a denial of equal pro-

- tection becaus@it takes the form, as here, of a statutory fee

for a transcripy which is necessary to present a contention

on appeal, than it is when a simple filing fee itself is

involved. See Smith v. Bennett, 365 U.S.-708 (1961); Burns

v. Ohio,..360 U.S. °252 (1959). Here there is clearly no

‘compelling state interest’’ which can be advanced to defeat

' the demands of the Equal Protection Clause. The State’s .

_interest in ensuring that those benefiting. from the provision

of: transcripts pay’ for them. cannot apply to’ one who by

definition cannot pay. As this Court said in Tate v. Short,

U.S. _, 91: S.Ct. 668, 671 (1971):

‘«imprisonment {for non-payment of a fine] .

‘is imposed to augment the State’s revenues but

obviously does not serve that purpose; the defendant

can’t pay ‘because he is indigent. ©.”

- And the State’s fiscal interest in avoiding the minimal extra

costs?° of providing free. transcripts to indigents convicted:

20See Section III, post. = “oy

~/f \

| 26

of nonfelony offenses is hardly ‘ compelling: “ See Griffin |

-y, Illinois, 351 U.S. 12 (1956); Shapiro v. Thompson, 394

U.S: 618 (1969); see also eoaye y. Connecticut, supra at

788: «

B. The Due Process Clause: Denying Convicted Indi-

gents Full Appellate Hearings is Fundamentally

Unfair and Violates Due Process of Law.

Illinois Supreme Court: Rule. 607(b) (supra at 2-3) pre-

cludes the Illinois Supreme Court from considering those sub-

stantial contentions of error, raised by an indigent nonfelony

defendant, which require a‘transcript to prove. While grant-

ing an indigent an appeal in-form, Illingis is thus denying

him a hearing in substance. This is surely giving the poor

at best “‘the right to a meaningless ritual, while the rich man

has a meaningful appeal.”” Douglas v. California, 372 U.S.

353, 358 (1963). Such a “mutilation of the right to appeal”

is fundamentally unfair. (Preston v. Municipal Court, 188

C.A.2d 76, 10 Cal. Reptr. 2d 301, 306 (1st Dist. Ct. App.

1961).)

As this Court said about a similar procedure: + J |

“What was impermissible was the -fotal denial to

petitioners of any méans of getting adequate. appel-

late review on the merits in the State Supreme Court,

when no such clog on the process of getting conten-

tions before the State Supreme Court attends the

appeals of defendants with money.” Draper v. Wash- ©

ington, 372. U.S. 487, 498 (1963).

21 Additional conceivable State interests such as ensuring the “bona

fides” of indigency and prtecting against frivolous appeals can be

satisfied by “penalties for false pleadings or affidavits, and actions for

malicious prosecution or abuse of process, to mention only a few.”

- Boddie v. Connecticut, supra yt 788. And traditional civil processes,

such as garnishment and attachment, and possibly probation with

a work condition, are available to enforce the debt against a recalci-

trant. See Williams v. Illinois, supra at 244, n. 21. |

' ‘ 27

Rewardicss of whethe? a constitutional ght to apoeal ;

exists,?*-a State may ‘not, “consistent with due process, —

‘create an appellate system which hears cases not according

to their merits but ‘according to the wealth of their partici-

pants—an arbitrary system unrelated to the great purpose of

vindicating rights by appeal. As part of the only available

“dispute-settling”’ mechanism for a citizen forced to defend .

~ himself from accusations of crime, the appellate court sys-

tem must be open to his pleas of injustice without regard °

to whether he can pay a sum. This result is required if the

State’s monopoly over the means of séttling disputes is to

‘remain legitimate in our society. See Boddie v. Connecticut,

__- U.S. _=_, 91 S.Ct. 780 (1971). The central position of ©

our courts in reinforcing the deepest values of our culture

would be grossly undermined by a ruling that equality before

the law is not due to ninety or wre of our citizens faced with

accusation or conviction. of crime.”

... -- a

22The fact that an appellate system has existed in all states for _

many years indicatés its fundamental nature and casts renewed doubt .

on McKane v. Durston, 153 U.S. 684, "¢87. 688 (1894). Ch eg, «

lloy v. Hogan, 378 U.S. 1 (1964): Gideon v. Wainwright, 372 US..

. 5 (1963); Benton v. — 395 U.S. 784 (1969). {cases over-

| “ ruling prior cases). |

23499 percent of the Nation’s criminal cases are heard in the

lower courts.” President’s Commission on Law Sicteenene ine the

Administration of Justice, Task Force Report: The Courts 29 (U.S.

Government Printing Office, 1969). “Few citizens ever have contact

with the higher courts. In the main, it is the police and the lower

’ court Bench and Bar that convey ‘the essence of our democracy to

the people. Justice, if it can be measured, must:be measured by the

experience the average. citizen has with the police and the lower

courts.” \' Patrick V. Murphy, Police Commissioner of New York City,

in “The Role of the Police in Our Modern Society,” The Record of |

the Association of the Bar of the City of New York, Vol. 26, No. 4,

p. 292, 293 (April, 1971):

Ill.

GRANTING DEFENDANTHIS TRANSCRIPT WILL

NOT UNREASONABLY BURDEN THE STATE.

It may be anticipated that the City will argue that defend- |

ant, jand like-situated indigents, should be denied his Four- |

teenth. Amendment right to a free transcript for appeal

because to grant him his right might somehow irreparably

burden the State fiscal system. Prior holdings of this court

‘indicate that, as applied here, this argument is not legitimate

‘ or relevant at all. For example, in Shapiro v. Thompson,

394. U.S. 618, 633 (1969), holding unconstitutional a one-

year residency requirement for welfare benefits, this Court

stated flatly that: |

“We recognize that a State has a valid interest in

preserving the fiscal integrity of its programs... .

But a State may not accomplish such a purpose by

invidious distinctions between classes of its citi-

zens.... The saving of welfare costs cannot justify.

an otherwise invidious ctassification.’’**

However, if such an argument is legitimate, a heavy burden

is upon the State to prove that its financial interest in

defeating defendant’s Fourteenth Amendment right to “equal

and open access”’ to appeal is “compelling.” Shapiro v. °

Thompson, 394 U.S. 618, 634 (1969).

_ 24And this Court stated in Williams v. Illinois, 399 U.S. 234, 245

(1970):

“The constitutional imperatives of the Equal Protection Clause

must have priority over the comfortable convenience of the

status quo.

Moreover, this “‘cost-burden” argument has been rejected, explicitly

or implicitly, in every case in this Court involving procedural due

process rights, especially in indigent transcript: cases. See Griffin

v. Illinois, 351 U.S. 12 (1956); Williams v. Oklahoma City, 395 U.S.

458 (1969); cf. In Re Gault, 387 US. 1, 15 n. 14 (1967) (juvenile

proceedings); Boddie v. Connecticut, —— USS. , 91 S.Ct. 780

(1971) (filing fee for divorce); Gideon v. erage. 372 U.S. 335

(1963) (right to counsel at trial); Hamilton v. Alabama, 368 U.S. 52

(1961) (right to counsel at preliminary hearings).

BR RRO Se a cae: , —"

. :

5 -29

. This heavy burden cannot be met. Rather, available

figures overwhelmingly suggest that the total cost of provid-

ing free transcripts on appeal from nonfelony convictions to

indigents needing them will probably be even less than the

cost of providing such transcripts in felony cases, which is.

itself not very great. For the entire State of Illinois in 1970,

the cost of supplying free transcripts to indigents appealing

(felony) convictions was only $223,474.75 Thus, the argu-

ment that granting indigent persons who chose to appeal

their convictions for nonfelony offenses a free transcript if

they need it will “break the back” of the States’ fiscal sys-

tem is both wholly unsupported by the evidence and ludi-

crous in terms of comparable expenditures of State or local

funds for other purposes.”°

Those who argue the burdensomeness of allowing the

exercise of an indigent’s Fourteenth Amendment rights to

-a transcript in nonfelony cases do so by pointing to an

obvious but highly misleading fed that there are many

25Information supplied by the Chicago office of the Administra-

tive Office of Illinois Courts. See also, The Illinois State Budget

Fiscal 1972, p. 26, submitted to the 77th General Assembly by

” Richard Ogilvie, Governor. By contrast, the Circuit Court of Cook

County, Illinois, took in as revenue almost twice that amount in.

“library fees” alone in 1970, and indeed had a total revenue of over

$31 million, principally from fines. Statistical Report, Cases, Fees,

Fines and Cost, Dec. 1-Nov. 30, 1967-1970, 1 (prepared for the

Circuit Court of Cook County by its Clerk, Matthew Danaher)

[hereinafter ‘“‘Danaher Statistical Report”]. Cook County and the

City of Chicago together. appropriated for 1971 for “‘civil defense”

- over double the amount of total Illinois transcript.costs. The Annual

Appropriation Ordinance of the City of Chicago for 1971, Journal of

Proceedings of the City Council, Déc. 11, 1970 at 9612; The Annual

Appropriation Bill of Cook County for the Fiscal Year 1971 p. 112.

26For example, the annual budget of the City of Chicago for the —

Bureau of Sanitation is over $45 million, the Fire Department is over

$72 million and the Police Department is over $210 million. The

Annual Appropriation Ordinance of the City of Chicago for 1971,

‘Journal of Proceedings of the City Council, Dec. 11, 1970, at p. 9593,

9594, 9596.

more arrests and convictions for misdemeanor and ordinance

violations each year than there are for felony violations. In

the District of Columbia, for example, one thorough study

' showed a nonfelony-felony arrest ratio of about 28 ta }-?

And in 1970 in the Circuit Court of Cook Cou ty, 7 1hnotd:

there were only 5,184 felony, determinations, excluding pleas

or dismissals at preliminary hearing,?® while in Chicago in

the same year there were over 1 million fifial nonfelony

(misdemeanor, ordinance and traffic) detefminations.?? For

reasons which will become apparent/however, the magni-

tudes implicit in these relationships do not carry through

into the appellate. docket; inde¢gd, these figures bear

absolutely no relation to the probdble relative costs of pro-

viding free transcripts to indigeyits convicted of felony as

opposed to nonfelony offenses. :

Four reasons account for this result: (1) the vast majority

of nonfelony charges is disposed of without trial—by

forfeiture, plea or dismissal;(2) of those that result in con- |

viction after a trial, very. few are appealed; (3) very few that .

are appealed require a transcript; and (4) since most non-

felony trials are very short in duration, those transcripts that

are required on appeal are not lengthy. ,

The first reason—the high rate of dispositions without

trial—is highly significant on two grounds: first, it shapes

27In 1965, there were about 176,000 adult arrests for ordinance

violations and minor misdemeanors, and only 6,266 felony arrests in

the District of Columbia. Report of the President’s Commission on

Crime in the District of Columbia, 232, Figure 1. (U.S. Government

Printing Office 1966.) [Hereinafter “D.C. Crime Commission.”’]

28“Determinations” include acquittals, dismissals, and guilty pleas,

as well as convictions. Danaher Statistical Report, supra at 5 (com-

puted). Of course, excluding those final determinations which occur

at the preliminary hearing stage disproportionately enlarges the result-

ant comparison.. ;

29Danaher Statistical Report, supra at 10, 12 (excludes parking

tickets); Administrative Office of the Illinois Courts, plastica Bulle-

tin for the Calendar Year 1969, p. 6.

Th Rew MANO EATER RE YE LOL CL LOREEN OE GSE TA Oj AR EIN RN Eck TNR, Coa

sate ome oa pes

an appeal and a transcript (excluding transcripts of

the total universe of cases in which there could po}sibly be

the size of the category ‘“‘convictions after ould poh is

guilty

pleas); second, the rate of dispositions without trial Ne totally

inelastic to possible expansion because of the antidunced

availability of“transcripts on appeal to qualifying indigents—

that is, no one is going to fail to plead guilty, or refuse to

permit the dismissal of his chargés, or press his right to trial

instead of accepting forfeiture simply because, if indigent,

he is assured of a transcript on appeal.

It is a simple and oft repeated fact that che number of

actual convictions after trial in nonfelony cases nowhere

near approximates the number of charges filed or arrests

made. In Chicago, for example, of slightly over 1 million —

nonfelony determinations in 1969, including misdemeanors,

ordinance violations and traffic, ‘appros tely 800,000 were

in traffic cases,*° the vast bulk of which were forfeitures or

mail-in fines. 31 Because Illinois does not keep statistics

appropriate to the task, it is not possible to détermine with

exactness jhow many of these. 800,000 traffic cases resulted

in a trial and conviction. However,.in New York City, of 2

million such traffic cases recorded in 1964 and 1965, 98%

resulted in non-appealable pleas of guilty.*? Presumably the ©

situation in Illinois and elsewhere would be the same. Con-

30 Administrative Office of the Illinois Courts, Statistical Bulletin,

supra note 29 (excludes parking tickets). There were 809,287 final

traffic determinations in Chicago in 1969. In 1969-1970 in Chicago

there were only 24,376 convictions. after court hearing in parking

cases out of 2,833 325 complaints filed. Danaher Statistical Report,

supra at 12.

31See Annual Report of Administrator of U.S. Courts, 1969, pp.

" 98-99 (U.S. Government Printing Office); D.C. Crime Commission,

supra at 231.

32Figures come a the New York Court of Appeals in People v.

Letterio, 16 N.Y.2d 307, 213 N.E.2d 670, 674 (1965) (dissenting

opinion of Chief Justice Desmond).

cat ist

Cee

ESI B IN RIAN ELE RBI BY MS TM

ESOT I RL COGN EMER AY ie SDS MON ig gh RIE he 8 ete NCEE

: | | S2

victions after trial account for a tiny fraction of the remain-

ing 2%, which also includes dismissals, acquittals and

decisions not to appeal. Most importantly, as Chief Justice

Desmond of the New York Court of Appeals notes:

“Since almost all af these defendants [in traffic

cases] are either owners of automobiles or employed

as drivers of automobiles the number who could

successfully plead indigence wuuld be very small

indeed.”’ People v. Letterio, 16 N.Y.2d 307, 213

N.E. 2d 670, 674 (1965) (disseffting opinion).

. Thus traffic cases—accounting for the vast bulk of nonfelony

ome are not a fertile source for indigent transcript

als. ?

. “eects traffic cases, Chicago in 1970 recorded 38,849

findings of guilty in nonfelony cases (all misdemeanor and

ordinance offenses) including both convictions after trial

‘and’ also pleas of guilty. There were 2,800 total guilty find-

ings in felony cases,-thus indicating a 14 to 1 proportion

between nonfelonies and felonies as to total guilty determi-

nations (excluding traffic cases), including guilty pleas.’

In order to arrive at the total universe of “‘convictions after

trial,’’ which defines the outer limits of possible free tran-

script requests, the guilty pleas must be removed from this

proportion. When that is done, the proportion is reduced

to about 3 or 4 to | nonfelony to felony convictions after

trial.2° For the City of Chicago in 1970, this means under

33Moreover, most.of these cases are not “penal” but are “‘regula-

tory” as that term has been defined, and do not involve serious fines

‘or jail, culpability, and stigma as do defendant’s offenses. See discus-

sion at note 18, infra.

34Felony figures are for all Cook. County and not just Chicago

because Chicago felony figures are not available. Danaher Statistical

Report, supra at 5, 10.

35Ber>::.. no figures are available for percent of guilty pleas in

nonfelony cases in Chicago, this computation unfortunately must be

accomplished somewhat indirectly. We know that 81.3% (or 2,274)

2,000. total possible nonfelony free transcript requests,

to appeal, and needed a transcript to do so. Of course such

assumptions are utterly unreal.

In order to arrive at a proper estimate of the cost of

supplying transcripts to indigent appellants in nonfelony

cases relative to felony cases, this 3 or 4 to | proportion

, applicable to ‘ ‘convictions after trial’? must_be further refined

in the light of the three significant factors mentioned before:

(1) fewer nonfelony than felony convictions are actually

appealed, (2) fewer nonfeleny than felony appeals probably -

require transcripts, and (3) the average nonfelony trial (and »

thus transcript) is far shorter than the average felony trial.

As to the first factor, the relative number of nonfelony

appeals, it is a striking fact that our appellate systems are so

relatively free of them. A study of the appellate system in.

Washington, D.C., for example, found that felony appeals

outnumber nonfelony appeals by 3.4 to 1.% Although one

might argue that making free transcripts available, to indi-

of the: félony convictions in Chicago in 1970 followed guilty pleas,

and.18.7% (or 526) did not. Danaher Statistical Report, supra at 5.

Figures from other cities show a remarkably uniform 95% .nonfelony

guilty plea rate. There is no reason to believe Chicago is atypical in

this regard. Applying this 95% rate to Chicago would mean that .

there were 36,900 guilty pleas and 1,945 convictions after trial in,

nonfelony cases in 1970. See Jennings, The Flow of Arrested Adult

Defendants Through the Manhattan Criminal Court in 1968 and 1969

(1970), p. 6 (calculated from Table 2); Newman, Conviction: The.

Determination of Guilt or Innocence Without Trial, 1, n. 1 (1966);

‘Oaks &-Lehman, A Criminal Justice System and the Indigent, p. 147,

n. 344 (1968).

36In 1965, there were 237 felony appeals. filed and only 70

appeals in ail misdemeanor, ordinance and traffic cases. D.C. Crime

Commission, supra at p. 302, Table 35; p. 290, Table 28. In’the Dis-

trict at the time of this study, convictions resulting in fines of $50

or more, or any confinement, were appealable of right, while those

sentenced to less than $50 had to apply for the allowance of an ap-

‘ peal. 11 D.C. Code § 741 (Supp. V, 1966). |

baa ie

Bry F

DTS, FS VRE tee RCT

FEAR ELE TONNE PRR HIDIHS rf

‘

.&:

gents in nonfelony appeals will narrow this margin, such a

result seems highly improbable. Rather, it seems that the

- “demand” for appeals by indigents in nonfelony cases is

almost totally inelastic with respect to the furnishing of

free transcripts; that is, the rate of appeal does not.depend

upon the availability of free transcripts. This is because it

is not the lack of free transcripts for indigents that is

restricting the flow of appeals in these cases,’but other fac-

tors relating both to the burden of appeal relative to possible

gains where serious penalties are not involved—delays, pro-

- longation of uncertainty, probability of affirnrance, and the

: like—and also, and most importantly, to the fact that most

\ indigents serve out their sentences or ‘‘work off” their fines

before their appeals can be heard because of their inability

to post pretrial or post-trial bail.*’

The second important factor reducing the relative cost of

, transcripts for nonfelony appeals proportionate to felony |

37% _ [A] convicted misdemeanant has little incentive to app al:

he would usually have served his sentence before the appeal could be

heard.” Oaks & Lehman, A Criminal Justice System and the Indi-

gent, p. 146 (1968). A study of “serious misdemeanors” in the

District of Columbia revealed, for example, that only 31 of 792

defendants convicted after trial appealed,.whereas for felonies 237 of

265 defendants convicted after trial appealed. D.C. Crime Commis-

sion, supra at 241, 275. In Illinois, as in many states, time served while

awaiting trial is credited against any sentence or fine received after con-

viction, at the $5 per.day rate for fines. See 38 Ill. Rev. Stat. § 119-3;

People v. Carroll, 76 Ill. App. 2d 9, 221 N.E.2d 528 (1966); cf. Tate

(1971). Surveys show that

large percentages of felony defendants are incarcerated before trial

for inability to make. bail; sample figures in large urban areas run

from 79% of defendants in St. Louis, 75% in Baltimore and 71% in

Miami to 54% in Boston, 48% in Detroit and 44% in New Orleans.

Freed and Wald, Bail in the United States: 1964, 40-41. Presumably

nonfelony percentages would run somewhat ‘smaller be¢ause lower

bonds are usually set, but the indigent who might later need a free

transcript is by definition far less likely than the average arrestee to

be able to find bond money for pre-trial or post-trial release.

appeals below the 3 or 4 to 1 ratio.applicable to ‘‘convic- -

tions after trial,’ is the fact that the overwhelming propor-

'. tion of nonfelony trials are short and perfunctory, requiring,

if appealed by indigents, only very brief transcripts if

transcripts are needed at all.. For example, one careful

observer of an urban court processing serious misdemeanors

found that “‘the great majority of trials are completed within |

an hour.” Subin, Criminal Justice in a Metropolitan Court,

p. 82 (Office of Crim. Justice 1966).- In ordinance cases,

another study calculated an average disposition time of 2

minutes per case. D.C. Crime Commission, supra at 280.

Clearly, then, the average length of the transcript decreases

with the seriousness of the offense. At 75¢ or less per page,

the ‘“‘burden”’ to the State of furnishing indigents with free

transcripts in these brief ordinance cases would be trivial.?8

And the brevity of the usual case suggests that, unlike

defendant’s case here, reconstruction of the evidence apart

from a transcript is ‘ordinarily feasible. |

As to the third factor—the relatively less frequent, need

for a transcript in nonfelony appeals, the important relation-

ship is the relative incidence of juries in felony and non-

felony trials.. The importance of the presence or absence of

a jury for purposes of appeal lies in the fact that few appel-

late courts consider close questions of prejudice through the

improper admission of evidence or improper argument or

conduct in non-jury cases, and thus few convictions involv-

ing that sort of issue will be appealed.*? - In this regard it is

a fact that very few ordinance and misdemeanor cases are

tried before juries even where juries are available. Although

figures are scarce, those available from Oklahoma City show

slightly over 1% of ordinance charges filed résult in jury

38See 37 Ill. Rev. Stat. § 655 (statutory rate of $.25 per 100

words).

39For felony appeals, reversals by one court of last resort turned

on legal issues not requiring a transcript.in 68% of the cases. D.C.

Crime Commission, supra at 314, Table 46 (computed).

trials,4° and’ those from the District of Columbia show

slightly over 242% of “‘serious misdemeanor” charges filed

_ result in jury trials.*! In felony cases, on the other hand, in

some locations it is the rare case which does not go to the

jury. In the District of Columbia in 1966; for example, less

than one out of every ten trials was before a judge without

a jury, D.C. Crime Commission, supra at 246, Table 7, and

nationally, about 60 percent of trials for major crimes are

before juries. Kalven & Zeisel, The American Jury, 18,-

Table I (1966). :

_ In summary, the evidence clearly demonstrates that the

total cost of providing nonfelony indigents with transcripts

will. most likely be Jess than that for felony indigents.*?

Thus the exercise by indigents convicted of nonfelony

offenses of their right to a free transcript on appeal will not

unreasonably “‘burden” the State’s fiscal system. That

‘treacherous notion must be finally interred.

Two further considerations are important. First, several ,

of the most populous states in this country already grant

free transcripts to all indigent defendants needing them

40Of 2.305 ordinance charges filed in Oklahoma City in 1968,.

only 30 went to’jury trial. Brief of Petitioner at 45, Appendix C, ~

Williams v. Oklahoma City, 395 U.S. 458 (1969) (Oct. Term 1968,

No. 841); see also Kalven & Zeisel, The American Jury, 18, n. 12

(1966). -

41D.C. Crime Commission, supra at 275, Figure 4.

42Moreover, to lower costs still further a state might choose to

institute an installment payment plan for those with some income,

' but which is insufficient to permit lump sum payments. See Tate v. .

Short, US. __, 91 S. Ct. 668 (1971); Williams v. Illinois, 399

U.S. 235, 244-45, 264 (1970); Rinaldi v. Yeager, 384 U.S. 305

(1966). Such a system would appear to be effe&tive; the appellant,

of one State’s practice of seeking repayment for appointed counsel

as a condition of probation, a closely analogous situation, found that

“this condition of probation is rarely, if ever, violated.” Kamuisar &

Choper, “‘The Right to Counsel in Minnesota: Some Field Findings,

and Legal-Policy Observations,” 48 Minn. L. Rev, |, 24 (1963).

37 | .

regardless of the nature of the offense for which they were

convicted. Indeed, in New York this rule derives from state

law and long preceded Griffin v. Illinois. If providing free

transcripts to all persons needing them and unable to pay

for them does not unreasonably burden New. York and

California,*? among other states, it will not do so to Illinois.

And more states are now undertaking to provide free counsel :

for the trial of municipal and traffic cases—a far more “‘burden- «

sume” undertaking than a transcript for appeal. See, e.g.,.

Rodriguez v. Rosenblatt, Supreme Court of New . Jersey,

September Term 1970, No. A-77, Decided May 10, 1971.

Secondly, it ill behooves a city in which the judicial sys- .

tem returns an enormous revenue into local coffers to argue

that improving the quality of justice, by providing indigents

with free transcripts (and thereby incurring relatively insig- _

nificant, marginal or additional costs), somehow creates an

unmanageable “burden’’. In fiscal 1970, for instance, the

Circuit Court of Cook. County. had revenue, mostly from

fines, amounting to over $31 million, of which of $26

million came from the Municipal Department—the very

court which processes all misdemeanor, quasi-criminal and

‘ traffic. cases in Cook County and which convicted defend-

ant.4 It seems, indeed, that in many or possibly all juris-

' 43@lifornia: Deering’s Government Code §§ 72195, 69952; In Re

Henderson, 61 Cal. 2d 541, 39 Cal. Rept. 373, 393 P.2d 685 (1964)

(‘‘disorderly conduct”); Muller.v. Municipal Ct., 259 C.A.2d 177, 66

Cal. Rept. 367 (1968) (parking); Preston v. Municipal Ct., 188 C.A.2d

76, 10 Cal. Reptr, 301 (1961). New York: McKinney’s Consol.*Laws

of N.Y. Ann., Vol. 66, §§ 756, 456; Vol. 29A, Part 3, N.Y.C. Crimi-

nal Court Act, §§. 40, 43, 91; Uniform District Court Act, §§ 2018,

2006; People v. Freeman, 44 Misc. 2d 1016, 255 N.Y.S.2d 563

(Seneca County Court 1965);- People v. Collins, 38 Misc: 2d 952, 239

N.Y.S.2d 274 (Erie County Court 1963); People v. Sporborg, 57

_ Misc. 2d 140, 292 N.Y.S.2d 162 (1968) (Sup. Ct. App. Term).° See

‘also Tate v. United States, 123 US. App. D.C. 261, 359 F.2d 245

(1966). .

4 Danaher Statistical Report, supra at 1.

dictions, the courts actually do turn a profit,** thus possibly

making them the only public service which is financially

self-sustaining.

These facts clearly. demonstrate that the “‘burden”’ argu-

ment is both fanciful in its fear and without basis in fact.

IV.

THE JUDICIAL SYSTEM AND SOCIETY WILL

GREATLY BENEFIT IF ALL CONVICTED INDI-

‘GENTS ARE INSURED ACCESS TO THEIR TRIAL

TRANSCRIPTS.

It has become commonplace to point out that the urban |

courts which “‘process’” misdemeanor and penal ordinance

violations do so in a manner which belies the grand phrases

‘Equal Justice under Law” and “‘Due Process of Law,” and

gives thdse phrases quite a different practical meaning.*° As

45In the District of Columbia, while $4.7 million was collected in

revenue by the District’s Court of General Sessions, which handles

97% of all its civil and criminal litigation, costs ran only $2.2 million.

D.C. Crime Commission, supra at 283. The City of Oklahoma

spent $217,675 for the general operation of its municipal courts

in fiscal 1967-1968, while collecting $1,553,205 in fines and costs.

Brief of Petitioner, at 43, Appendix B, Williams v. Oklahoma

City, 395 US. 458 (1969). .

"” “An observer in the lower criminal courts ordinarily sees .

a trial bearing little resemblance to those carried out under

traditional notions of due-process ... Rules of evidence are

largely ignored. Speed is the watchword. Trials in misde-

meanor cases may be over in a matter of 5, 10. or 15

. minutes; they rarely last an hour even in relatively compli-

cated cases. Traditional safeguards honored in felony cases

lose their meaning in such proceedings; yet there is still the

possibility of lengthy imprisonment or heavy fine. -

* _ * * ~

“Observers have sometimes reported difficulty in deter-

mining what offense is being tried in a given case... >.”

President's Commission on Law Enforcement and Adminis-

tration of Justice, Task Force Report: The Courts 30, 31

(Government Printing Office, Washington, D.C. 1967) [here-

inafter “Task Force Report” ].

Ban LD CNS RRA ACR RR

Charles Evans Hughes said over 50 years ago in words that

stand forcefully today:

“The Supreme Court of the United States and the

- Court of Appeals will take care of themselves. Look.

after the courts of the poor, who stand most in need

_ of justice. The security of the Republic will be

- found in the treatment of the poor and the ignorant;

in indifférence to their misery and helplessness lies

disaster.”” Address by Charles E. Hughes, N.Y. State

Bar Ass’n 42d Ann. Meeting, in 1919: Proceedings of

the N.Y. State Bar Ass’n. 224, 240-241.

And from the Paced York City Commissioner of Police, we

_hear:

‘““Few citizens ever have contact with the higher .

courts. In the main, it is the police-and the lower:

court Bench and Bar that convey the essence of our.

democracy to the people.

“Justice, if it can be measured, must be measured

by the experience the average citizen has with the

‘police and the lower courts.’’*”

The great danger is that Justice in our police and lower

courts will be measured thinly in every case. The best, and

universally available.safeguard against this danger is the right

to secure appellate review. But for the indigent without

funds to buy a transcript, a meaningful review of the con-

duct of his trial is beyond reach. That this isso, and known .

to be so, creates ‘“‘a license for arbitrary procedure”. Kent

v. United States, 383 U.S. 541, 553, 561 (1966). Over-

worked and harassed courts and prosecutors, conscious of

47Patrick V. Murphy, “The ‘Role of the Police in Our Modern

Society,”’ The Record of the Association of The Bar of The City of New

' York City, Vol. 26, No. 4, P. 292, 293 (April, 1971). After reviewing

the conditions in our nation’s lower criminal courts, the President’s Com-

mission on Law Enforcement and Administration of Justice was

“shocked by what it has seen.” The Challenge of Crime in a Free

Society, 128 (U.S. Gov. Printing Office, Washington, D.C. 1967).

_ See also D.C. Crime Commission, supra at 280-281. —

the practical unavailability of ‘review, will tend to lean away

hand, the prospect of each convicted indigent having access

_ to his transcript will: go far toward insuring that no one

_ suffers the sort of trial described by these Presidential Com-

missions and_observable every day in courtrooms across the

land. Indeed, in New York, the importance of available

review is considered so great in these cases that a transcript

is an indispensable part of the record on appeal, and all

cases, including traffic cases, must be transcribed. People v.

Schenkel, 256 N.Y. 539, 177 N.E. 131 (Ct. App. 1931);

People v.. Newhart, 235 N.Y.S. 2d 330 (Schuyler County Ct.

1962); People v. Saalfield, 14 N.Y.2d 915, 252 N.Y.S. 2d

320, 200 N.E. 2d 862.(1964). As the New York Court of

Appeals stated in People v. Giles, Aye N.Y. (136, 140, 46°

N.E. 326, 328 (1897):

“Our magistrates are invested with important

powers. ... Their determinations, in many instances,

involve the liberties and property of citizens. To

permit them to exercise these important powers

without keeping any minutes or records of the testi-

mony upon which their determinations can be

reviewed, would be contrary to public policy, and

would be investing them with autocratic powers

greater than those possessed by any other officer of

the government.”’

48This tendency towards informality and disregard, a product of

“unbridled discretion” in fact, has been described:

“Other defects in the justice-of-the-peace courts arise

from the lack of supervision and control of their activities.

Questionable practices may often go unchecked.

: * 8 * ok *

“(F]or the most part the individual justice works below

the threshold of judicial visibility. His acts are very often

discretionary in nature and are seldom subject to judicial

review .... Moreover, the failure to maintain adequate

records for all justices . . . means that the entire system is

likewise obscure in ms outline and workings.” . Task Force

Report, supra at 3S.

See also Rules of Procedure for the Trial of Minor Offenses

Before United States Magistrates, Rules 2(d)(3) and 3 (c) (2),

Members of this Court have echoed this concern:

‘‘(Jjustice demands an independent and objective

assessment of a district judge’s appraisal of his own

_ conduct of a criminal trial.”” Coppedge v. United

States, 369 U.S. 438, 455-456 (1962) concurring

opinion of Stewart, J:).

Thus it can be seen that providing a right to a free tran-

script to-all indigent appellants, and not just ‘to those con-

victed of felonies, will greatly improve the quality of justice

far beyond those few who actually will avail themselves of

their right. For the vast bulk of citizens caught in -the

criminal process, this country shall have taken another

important step along the road to a fairer system of law.

CONCLUSION

Wherefore, defendant prays that the judgment of the

Supreme Court of Illinois appealed from be reversed with

instructions that defendant be afforded a transcript of his

trial proceedings without costs to him for use on appeal, :as

, would be provided under Illinois Supreme Court Rule 607(b) —

were: ‘he convicted of a felony, or, in the alternative, that his

judgments of conviction be vacated and expunged.

Respectfully submitted,

HENRY F. FIELD

THOMAS B. McNEILL

ROBERT A. BURT

Attorneys for Appellant

8 AANA HSE Sc De cab AALS

ADDITIONAL CONSTITUTIONAL, STATUTORY

AND OTHER PROVISIONS INVOLVED

A. THE CRIMES

1. CITY “DISORDERLY” ORDINANCE:

‘A person commits disorderly conduct when he knowingly:

(a) Does any act in such unreasonable manner as to pro-

voke, make or aid in making a breach of the peace.”

“A person convicted of disorderly conduct shall be -fined

not less than $5.00 nor more than $500.00 for each offense.”

Municipal Code of Chicago, §193-1a (1969)—Disorderly

Conduct. “ .

2. CITY “INTERFERRING” ORDINANCE:

‘ “(a) Any person who knowingly shall resist or obstruct

the performance by one known to the person to be a peace

officer or any authorized act within his official capacity or

shall knowingly interfere or prevent a peace officer from

discharging his duty as such officer and whoever shall in any

manner-knowingly assist any person in the custody of any

member of the police department to escape or attempt to.

escape from such custody, shall ‘be fined not less than

$25.00 nor more than $500.00.

—“(b) For the purposes of this section ‘resist’ shall mean

passive as well as active resistance.” Municipal Code of

Chicago § 11-33 (1969)—Interferring with a Peace Officer.

3. STATE “INTERFERRING” STATUTE:

‘Resisting or Obstructing a Peace Officer. A person who

knowingly resists or obstructs the performance by one

act within his official capacity shall be fined not to exceed

$500.00 or imprisoned in a penal institution other than the

penitentiary not to exceed one year, or both.” 38 Ill. Rev.

Stat. 8 31-1.

$9 A RRM

Pee ene sh eT

4. STATE “DISORDERLY” STATUTE:

_ “Elements of the Offense.

“(ay A person” commits disorderly conduct when he.

knowingly:

“(1) Does any ‘act in such unreasonable mariner as to

alarm or disturb another and to provoke a breach of the

| peace ; ‘

* * * * 2 *

«““(b) Penalty.

‘‘A person convicted of.a violation of subsection 26- -] (a)

(1) or (a) (2) shall be fined not to exceed $500.00.” 38 ur

Rev. Stat. § 26-1 (Dionderty Conduct).

iB. ILLINOIS CONSTITUTIONAL PROVISIONS

RIGHTS OF THE CITIZEN

Due Process:

“No person shall be deprived of life, liberty or property, |

without due process of law.” Constitution of Illinois 1870,

Article II, § 2:

_ Trial by Jury:

“The right-of trial by jury as heretofore enjoyed, shall

remain inviolate; but the trial of civil cases before justices

of the peace by a jury of less than twelve men may be

authorized by law.”’ Constitution of Illinois 1870, Article

II, 8S.

Trial by Jury:

‘In all criminal prosecutions the accused shall have the

right to appear ahd defend in person and by counsel, to

demaiid the nature and cause of the accusation and to have

a copy thereof, to meet the witnesses face to face, and to

have process to compel the attendance of witnesses in his

behalf, and a speedy. public trial by an impartial jury of the

s 7 + county or district in which the offense is alleged to have

~ been committed.’ Constitution of Illinois 1870, Article II,

890 . |

Right to a Remedy for a Wrong and to Free Justice:

j- “Every person ought to find a certain remedy in the laws

for all injuries and wrongs which he may receive in his per-

son, property or reputation; he ought to obtain, by law,

right and justice freely, and without being obliged to pur-

chase it, completely and without denial, promptly, fd

without delay.”’ Constitution of Illinois 1870, Article II,

$19. —

Right to Appeal:

“Appeals from the final judgments of Circuit Courts shall

lie directly to the Supreme Court as a matter of mght only

(a) in cases involving revenue, (b) in cases involving a ques-

tion arising under the Constitution of the United States or

of this State, (c) in cases of habeas corpus, and (d) by the

defendant from sentence in capital cases. Subject to law

hereafter enacted, the Supreme Court has authority to pro-

vide by rule for appeal in other cases from the Circuit Courts

directly to the Supreme Court.’ Constitution of Illinois

1870, Article VI, 85. .

“In all cases; other than those appealable directly to the

Supreme Court, appeals from final judgments of a Circuit

Court lie as a matter of right to the Appellate Court in the

district in which the Circuit Court is located, except that

after a trial on the merits in a criminal case no appeal shall

lie from a judgment of acquittal. The Supreme Court shall

provide by rule for expenditious and inexpensive appeals.”’

Constitution of Illinois 1870, Article VI, § 7.

One Circuit Court:

‘There shall be one Circuit Court for each judicia! circuit

which shall have such number of circuit and associate judges

and magistrates as may be prescribed by law;...” Consti- '

tution of Illinois 1870, Article VI, § 8. :

“The Circuit Court shall have unlimited original jurisdic-

tion of all justiciable matters, and such powers of review of —

administrative action as may be provided by law.”’ Consti-

tution of Illinois 1870, Article VI, 89.

-C: RULES OF THE ILLINOIS SUPREME COURT

ALTERNATIVES TO A TRANSCRIPT:

" Rule 323(c):

Procedure for a Settled Statement for Apes:

“Procedure If No Verbatim Trans¢ript Is Available. If no

verbatim transcript of the evidence or proceedings is obtain-

able, the appellant may prepare a proposed report of

proceedings from the best available sources, including recol-

lection. It shall be served within seven .days after. the notice

of appeal is filed. Within 21 days after the notice of

appeal is filed, any other party may serve proposed amend-

ments or his proposed report of proceedings. Within —

seven days thereafter, the appellant shall, upon notice, pre-

sent the proposed report or reports and any proposed

amendments to the trial court for settlement and approval.

The court, holding hearings if necessary, shall promptly

settle, certify, and order filed an accurate report of proceed-

ings.” 110A Ill. Rev. Stat. § 323(c) (1969).

Rule 323(d): .

Agreed Statement of Facts (For Appeal):

“The parties by written stipulation may agree upon a

statement of the facts material to the controversy and file

it in lieu of and within the time for filing a report of pro-

ceedings.” 110 Ill. Rev. Stat. § 323(d) (1969).

dine.

ni nhl wcll e 2

PROVISIONS FOR FREE TRANSCRIPTS a mn

(See also Rule 607(b), infra, p. 2-3)

Rule 66f(b):

Report of Proceedings (Juvenile Cases):

“In all proceedings in which a minor is found to-be a,

. delinquent, the minor may petition the circuit court for a

transcript of the adjudicatory and dispositional hearings.

The petition shall be verified by the petitioner and-shall

state facts showing that he was at the time of his adjudica-

tion of delinquency, and is at the time of the filing of the

petition, without financial means to pay for the transcript.

If the judge. who made the order of disposition, or in his

absence any other judge of the court, finds that the minor

is without the financial means to obtain a transcript of his

hearings, he shall order the court reporter to transcribe an

original and copy of his notes. The original of the transcript -

shall be certified by the reporter and filed with the clerk of

the circuit court, and the copy shall be certified by the

reporter and delivered to the minor without charge. The

reporter who prepares a transcript pursuant to an order

under this rule shall be paid the same fee for preparing the

transcript ‘as is provided by law for the compensation of

reporters for preparing transcripts in other cases.”” 110A III.

Rev. Stat. 8661 (b) (1969).

Rule 651 (c):

Record for Indigents; Appointment of Counsel

(Post-Conviction Proceedings):

“Upon the timely filing of a notice of appeal in a post-

conviction proceeding, if the trial court determines that the.

petitioner is indigent, it shall order that a transcript of the

record of the post-conviction proceedings, including a tran-

script of the evidence, if any, be prepared and filed with

the Clerk of the Supreme Court and shall appoint counsel

on appeal, both without cost to the petitioner.”” 110A III.

Rev. Stat. § 651 (c) (1970).

” 6a

“DP. OTHER STATUTORY PROVISIONS.

STATUTORY. PROVISION FOR TRANSCRIPT OF

TRIAL FOR POST-CONVICTION PROCEEDING:

(2) Duties of reporters in proceedings arising under

post-conviction hearing act. In any case arising under ‘An

Act to provide a remedy for persons convicted and

imprisoned in the penitentiary, who assert that rights guaran-

teed to them by the Constitution of the United States or

the State of Illinois, or both, have been denied, or violated,

in proceedings in which they were convicted’, approved

August 4, 1949, in which the presiding judge has determined

that the post-conviction petition is sufficient to require an

answer, it shall be. the duty of the official court reporter to

transcribe, in whole or in part, his stenographic notes of the

Cevidescé introduced at thé trial in which the petitioner was

convitted, if instructed so to do by the State’s Attorney or

by the court. |

(3) The official court reaorter shall transcribe and

furnish an original and copy of the proceedings at the trial |

of any person sentenced to any imprisonment where, pur-

suant to Rule __ of the Illinois Supreme Court, #n order

is or- had been entered so requiring.’’ 37 Ill. Rev. Stat.

§ 163(f)(2) and (3).

w 4

STATUTORY PROVISION OF COURT REPORTER AND FEE:

“Means of seoortiig-~Transedpe: The court reporter shall

make a full reporting by means of stenographic hand or

machine notes, or a combination thereof, of the evidence

and such other proceedings i in trials and judicial proceedings

‘to which he is assigned by the chief; judge, and the coprt

reporter may use an electronic instrument as a SUPPIEMIEn:

_ tary device. . o,

* * * ~ oe ; *

“The court reporter shall furnish forthwith one transcript

of the evidence and pfeteedings in.a tiial or other judicial

proceeding correctly made to any party to the trial or pro-

Co!

ceeding upon .the request of. such party of his attorney.

Unless and until provided in a Uniform Schedule of Charges

, which may hereafter be provided by rule or order of the

Supreme Court a court reporter may charge.not to exceed

-25¢ per 100 words for making transcripts of his notes. The

fees for making transcripts shall be paid in the first instance *

by the party in which behalf such transcript is ‘ordered and

shall be taxed in the suit.” 37 IIl.-Rev. Stat. 865 (1969).

STATUTORY PROVISION FOR |

“WORKING OFF” FINES IN ORDINANCE CASES: |,

“Punishment for violation of ordinance. In ail<actions

for the violation of any municipal ordinance, . . . [t]he per-

‘son upon whom any fine or penalty is imposed, upon the

order of the court or magistrate before whom the convic-

tion is had, may be committed to the county jail as provided

_ in Section 1 1-3-2 or to any place provided by ordinance for

_ the incarceration of offenders until the fine, penalty,and

_costs are fully paid. No imprisonment, however, shall

exceed 6 months for any one offense.

‘The corporate authorities may provide by ordinance that

every committed person shall be required to work at what-

ever labor his strength permits, within and without the

place of incarceration, not to. exceed 10 hours each working

day. The committed person shall be allowed, exclusive of

his board, a credit of $5 for each day’s work on account of

the fine, penalty; and costs.” 24 Ill. Rev. Stat. § 1-2-9.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.