# Amicus Curiae Brief — Mayer v. Chicago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0350%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 404 U.S. 189 ## Text 0 Sven et an SY pesarcon unseen aeies sheet TABLE OF CONTENTS _ Pace Interest of the State’s Morey of Cook County, Filing As Amicus Curiae ..... 020. ccc ccc cece wees 2 Summary of Argument....... rere Sues au ee cup aes 3 Argument: I. Since the petitions made no effort to utilize any other available means to afford him appellate review, he is now estopped from contending that the failure to provide him a free tran- script violated his constitutional rights. ...... 6 II. The decision in Williazns v. Oklahoma City’ does not require the granting of a free tran- script in the instant case.’.................. 9 III. A review of Supreme Court decisions in areas related to the question of free transcripts for indigent defendants indicates a clear intent to limit the granting of free transcripts only to defendants who have received jail sentences... 12. Conclusion .............. woe qapesutcduueeen succes 26 yo 0) 602) 110, Qa ea ee ere to oe we. 27 TABLE OF AUTHORITIES CASES: Baldwin v. New York, 399 U.S. 66 (1970) ......... ... 14 Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534.(Ark. | Ly pe aa eter ee ea vee 185 Coppege v. United States, 369 U.S. 438 (1962) ........ 22 ” “Vie | De Joseph v. Connecticut, 3 Conn. Cir. 624, 222 A. 2d 752 (Conn. 1966) cert. denied, 385 U.S. 982 (1966).. 16 Douglas v. California, 372 U.S. 353 (1963) ....15, 24, 26 Draper v. Washington, 372 U.S. 487 (1963)......... 7, 8 ' Duncan v. Louisiana, 391 U.S. 145 (1968) .... 13, 14, 15, 22 _ Eskridge v. Washington Board of Prison Terms and Paroles, 357 U.S. 214 (1958). .......0.020.00 cece cns 6 Frank v. United States, 395 U.S. 147 (1969) .... 22, 23 © Gideon v. Wainwright, 372 U.S. 335 (1963). .4, 14, 15, 24, 25 Griffin v. Illinois, 351 U.S. 12 (1956) . .3, 6, 8, 12,.15, 25, 26 Harvey v. State of Mississippi, 340 F. 2d 263 (5th Cir. — 1965) soe hee on heen ers eye eens eewaneees oes 10 Johnson v. United States, 352 U.S. 565 (1957) ........ 6 - Klopfer v. North Carolina, 386 U.S. 213 (1967)...... . 21 McDonald v. Moore, 353 F. 2d 106 (5th Cir. 1965)..... 16 Norvell v. Illinois, 373 U. S. 420 (1963) -gengeeee-Sees 25 People v. Dupree, 42 Ill. 2d 249, 246 NE 2d 281, (Til., 1969) cert. denied, 396 U.S. 1047 (1970) ...... ... 16; 17 People v. Letterio, 16 N.Y. 2d 307, 213 NE 2d 670 (N.Y., 1965) ....... Gee eessieueeressereees 18, 19, 25 People v. Mallory, 378 Mich. 538, 147 NW 2d 66 (Mich., ° TOG) exe ees eee teary ss oredr seers hs ceess genase 16 Singer v. United States, 380 U.S. 24 (1965) Meeeeeaess 13 Smith v. Bennett, 365 U.S. 708 (1961) .............. «6 Spencer v. Texas, 385 U.S. 554 (1967) ............... 25 State v. Bennett, 266 N.C. 755, 147 7 E. 2d 237 (N. C., T9GG) cease oeesed ieekeheecausseanientcaesecseus 16 Tate v. Short, 401 US. 395 (1971) ...0...:... wees ee » 23 iij. Willaims. Oklahoma City, 395 U.S..458 . * 60.) ae ee oa aaes 3, 4, 8, 9, 10, 11, 22 Winters v. Beck, 239 Ark. 1093, 397 S.W. 2d 364 (Ark., 1965), cert. denied, 385 U.S. 907 (1966) .......... 16 CONSTITUTIONAL PROVISIONS . Pace United States Constitution, Amendment 6 ............ eeeceteaseawenses 13, 15, 21 Amendment 14 .................000. 10, 13, 15, 21, 26 ‘STATUTORY PROVISIONS AND RULES OF COURT Illinois Supreme Court Rules (Chap. 110A, Ill. Rev. Stat.) Rule 323 (ce) .......... ee peweeeeeeeaeeus 3, 7, 8, 10, 11 Rule 320 (d) cen as teen tenses isiesanses --3, 7, 8, 10,11 - Rule 603 (as ‘amended J uly 1, 1971) Vinee este hens 21 Municipal Code of Chicago, Illinois | | Ch. 11, §11-33 ........ ee ne we cgaedtas 11 Chi: 193; S.10G) ecntcyetaeeesateres edateweaadeues -11 craven Statutes Annotated, Title 22, § 1059 (1958) .. 10 iv. MISCELLANEOUS - PaGE Annual Report to the Supreme Court, prepared by the Administrative Office of the Illinois Courts. ...... 18, 19 The Indigent Defendants’ Right to Counsel In Misde- meanor Cases. 17 S.W. L.J. 593 (1965) ............ 18 Rules of Procedure For the Trial of Minor Offenses Befcre United States Magistrates. 8 Cr. L. 3901 (January 27, 1971). ....... 0... cee ee eee eee 5, 14, 17 Schaefer, Federalism and State Criminal Procedure . 70 Harv. L. Rev. 1 (1956). .. 0.0.2.0... 00. 000.. t20e. 28 Silverstein, Defense of the Poor in Criminal Cases in American State Courts, Vol. 1 (1965).............. 19 Statistical Report: Cases, Fees and Costs, 1967- 70, Prepared by the Office of Matthew Danaher, Clerk of the Circuit Court of Cook County, Illinois. ...... 18 IN THE Supreme Court of the United States - Ocroser Term, 1970 | No. 6061 | - JACK L. MAYER, ~ , Appellant, | VS. THE CITY OF CHICAGO, a Appellee. APPEAL FROM THE SUPREME COURT OF ILLINOIS BRIEF OF STATE’S ATTORNEY OF COOK COUNTY, ILLINOIS AMCUS CURIAE ¥ va INTEREST OF THE STATE’S ATTORNEY OF COOK COUNTY, ILLINOIS =~ -. FILING IN AMICUS CURIAE The Office of Edward YNanrahan, State’s Attorney of Cook County, Illinois 1s submitting the instant amicus curiae brief pursuant to the written consent of both parties to this cause Said brief has been prepared and submitted for the following reasons. , aitioner is r If this HonorabJe Court requires that the entitled to a free transcript, the expense of providing said transcript might have to be undertaken by the Cir- euit Court of Cook Coynty, whom the Office of the State’s Attorney of Cook Coufity represents. _ ® Furthermore, there are eight. misdemeanors included under the provisions of the Illinois Criminal Code (Il. Rev. Stats., Chap. 38 (1969) which provide*a fine as the only possible penalty (See Appendix). Since the in- stant cause will obviously affect the question of free transcripts for defendaiits convicted .of said charges, the State’s Attorney of Cook County, entrusted with the re- sponsibility of prosecuting violations of the Illinois Crim- inal Code within Cook County, wishes to present the in- stant brief in support of the position taken by the City of Chicago in the present. cause. We would like to acknowledge the assistance in the preparation of this brief of Daniel Pierce, a third year law~stadent at De Paul Sniveralty, Chicago. vo 3 * | SUMMARY OF ARGUMENT | I. In Griffin v. Illinois, 351 U.S. 12 (1956) this Court held that an indigent defendant who has been convicted of a felony chargg’ is entitled to a free transcript for purposes of an appeal. However, this Court also made it clear. that a verbatim transcript is not the only method whereby evidence can be presented to an appellate court for re- view. For example, the use can be .made of a bill of ex- ceptions, a method long approved by Illinois and other jurisdictions.. Said bill of exceptions can be prepared from the notes of the court, of counsel, or anyone ‘else who was present ‘during the trial. In addition, Minois “Supreme Court has permitted the use on appeal of néethodscother than a verbatim transcript in Supreme Court Rules 323 (ce) and (dy. However, petitioner clidse notto avail himself of any of these procedures, contending, instead, that these * methods ,were inadequate. However, since the alternate Illinois procedures have not been shown to be inadequate, petitioner is now estopped from contending that he has a constitutional right to a,verbatim transcript. Il: Williams v. Oklahoma City, 395 U.S. 458 (1969) is not controlling,’ as alleged by the petitioner. Although Wil- ligms is similar to the instant case in that it als6 in- volved the question of the right to a free transcript .by an indigent defendant, the other facts presented there are essentially different. Under Oklahoma law, a criminal appellant had to purchase a. “case-made,’’ gr verbatim transcript, -before he was permitted to appeal to the Yo? 4 Oklahoma Court of Criminal Appeals. This Court held that it was a denial of equal protection to preclude an indigent defendant from appealing merely because he was unable to purchase a “case-made,” which was the only way to present the evidence of the trial to the reviewing court. However, in Illinois there are alternative methods to the preparation of a verbatim transcript in which ‘to present an appeal, making this case patently distinguish- able from Williams. In addition, the defendant in Williams received a 90 day jail sentence, while the instant petitioner received, and indeed could only have received, a fine. As will .be noted in Point III, there has been no- intent shown by this ‘Court to extend any of the related constitutional rights to defendants convicted of offenses providing for only a fine as a penalty, thereby implying a similar in- tent regarding free transcripts. -. IIT. _ The question. of the extent to which constitutional tights are to be applied is often answered in light of the practical considerations facing this Court. For example, although the right to a trial by jury has always .been considered as fundamental to the American system of justice, that right has been limited to other than “petty” offenses. The basis for this limitation has been that the need for efficient and speedy adjudication outweigh any - benefits which might accrue to defendants accused of petty offenses and who wish jury trials. . Similarly, this Court has impliedly determined that the right to counsel guaranteed in felony trials in Gideon v. . 5 Wainwright, 372 US. 355, is net to be extended to petty | offenses, for this Court has,.on at least three occasions, denied certiorari in cases where the question of the right . to’ free counsel, to indigent. misdemeanants has been raised. In addition, in issuing its recent Rules of Pro- eedure for the Trial of Minor Offenses before United States Magistrates, this Court has not included the right to counsel to indigent defendants in trials involving petty offenses. The limitations placed on both the right to trial by '* jury and the right to counsel are grounded on a realiza- tion of the practical problems facing the bench with its overcrowded dockets and ‘the bar with inadequate man- . power: Taking the same practical approach with the in- stant question leads to the conclusion that the right of . an indigent defendant to a free transcript must be limit- ed to cases where said defendant has been convicted of other than a “petty” offense. ° ARGUMENT I. | | SINCE THE PETITIONER MADE NO EFFORT TO UTILIZE ANY OTHER AVAILABLE MEANS TO AFFORD HIM APPELLATE REVIEW, HE IS NOW ESTOPPED FROM CONTENDING THAT THE FAIL- URE TO PROVIDE HIM A FREE TRANSCRIPT | VIOLATED HIS CONSTITUTIONAL RIGHTS. © ~ In the landmark decision of Griffin v. Illinois, 351 U.S. * 12 (1956), your Honors ruled that if a State provides an avenue of appellate review it must also provide a free transcript to any indigent appealing a felony conviction. However, Mr. Justice Black, writing the majority. opin- ion, clearly indicated that a transcript need: not be pro- ‘ vided in every indigent appeal: “We do not hold, however, that Illinois must pur- chase a stenographer’s transcript in every case where a defendant cannot buy it. The Supreme Court’ may find other means of affording adequate and effective appellate review to indigent defendants. For ex- ample, it may be that bystanders’ bill of exceptions or other metheods of reporting trial proceedings could be used in some cases (Illinois cases cited.).’’ 351° U.S. at 20. (Cf. Smith v. Bennett, 365 U.S. 708, , 710 (1961); Eskridge v. Washington Board of Prison “Terms and Paroles, 357 U.S. 214, 216 (1958); John- son v. United States, 353 U.S. 565, 566 (1957). It is important to note that not only has a long line of cases in Illinois approved the use of bills of excep- tions without an accompanying transcript (See dissent- ing opinion of Mr. Justice Harlan in Griffin, supra at page 31), but the use of said method of review has long been historically approved. As was noted by Mr. Justice 7 - White, with whom Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Stewart joined, dissenting, in Draper v. Washington, 372 U.S. 487, at 502, citing Miller v. United States, 317 U.S. 192, 198 (1942): “Historically a bill of exceptions does not embody a verbatim transcript of the evidence but, on the con- trary, a statement with respect to the evidence ade- quate to present the contentions made in the appel- late court. Such a bill may be prepared from notes kept by counsel, from the judge’s notes, from the recollection of witnesses as to what occurred at trial, and, in short, from any and all sources which will contribute to a veracious account of the trial judge’s action and the basis on which his ruling was in- voked.’’ Further, it is important to observe that the [Illinois Supreme Court has acted in a manner consistent with this historical rule by providing in Rules 323 (ce) and (d) of its Rules of Practice, alternative methods to a verbatim transcript which may be usea for appellate re- | view 43 Ill: 2d R. 23 (1969). Rule 323 (ce) provides that the appellant may initially prepare a proposed -report of proceedings, which can be amended by the appellee and - the final version ultimately approved by the trial court. Rule 323 (d) permits the filing of an agreed statement of facts upon written stipulation. Yet, despite the availability of historical and statutory methods of reconstructing the record, petitioner has made no effort to utilize any of them. Rather, it is his contention that, were he to proceed under the provisions . of these Rules, he might find himself in a procedural -. trap, being bound to an “agreed” or “settled” statement of facts with which he really doesn’t agree. Yet a view 8 of Rules 323 (c) and (d) clearly indicates that once an appellant has initiated a procedure to try to accurately recapture what océurred at, trial, he is not irrevocably bound by what subsequently occurs. Rather, if he feels that his discussion with the Court and other counsel renders incomplete or inaccurate results, he is quite free to then request ‘a verbatim transcript as the only possi- ble method under the circumstances to-adequately present what occurred to the reviewing court. But this determina- tion must be made after attempting to utilize these other. methods, for as was observed in the dissenting opinion of Mr. Justice White in Draper v. Washington, supra., counsel for the petitioner could have prepared and pres- ented to the trial judge a bill of exceptions, “as was his duty.’’ 372 U.S. at 503. Having failed to attempt to prepare a -narrative bill of exceptions, and having explained none of -the cir¢um- stances which prevented them from doing so, (such an attempt at reconstructing the record was apparently ‘ made by petitioner and his counsel in Williams v. Okla- homa City, 395 U.S. 458 (1969) ), the attorneys for peti- tioner are now estopped from contending: that petitioner’s constitutional rights were violated when the Illineis Su- preme Court refused to grant him a free trnascript. (See dissenting opinion of Mr. Justice Harlan in Griffin, supra., at page 32). Petitioner is: simply not free to ig- nore established available, methods of procedure upon the supposition that these procedures possibly might not render adequate results. II. THE DECISION IN WILLIAMS v. OKLAHOMA CITY DOES NOT REQUIRE THE GRANTING OF A FREE TRANSCRIPT IN THE INSTANT CASE. It is the contention of the petitioner that the instant case is “identical in all important respects’? with Wu- liams v. Oklahoma City, 395 U.S. 458 (1969), (Appel- lant’s brief, p. 6) and éonsequently, Williams “controls this case.” (Appellant’s brief, p. 17). However, a reading of Williams reveals crucial differences with the instant case and clearly: indicates that the holding in Wiliams does not require the granting of a free transcript under facts such as presented in the case at bar. In Williaas it was noted that both the trial court and the Oklahoma Court of Criminal Appeals had ruled with regard to petitioner’s motion there that no indigent con- victed for a violation of a city ordinance petty in nature, "was entitled to a case-made or transcript at city expense in order to perfect his appeal from that conviction. The definition of a ‘case-made’ under Oklahoma pro- cedure was found on page 8 of the Brief of the respond- ent in Williams v. the City of Oklahoma City. Citing Bennett v. State, 152 P. 2d 388, the respondent quoted — _ the Oklahoma Court of Criminal Appeals: “A ‘ease-made’ consists of those things which. tran- spired in court during the trial and which are not part of the record, while a ‘transcript of the Record’ contains ev erything of which the clerk is, required ‘to make a record.” This definition indicates that a “case-made” is actually synonomous with a verbatim. transcript, while a “tran- 10 script’? under Oklahoma law; includes all other portions of the appellate record. - The pertinent Oklahoma statute (Okla. Stat. Amn. Tit. 22 § 1059 (1958)) required that the appellant order a case-made in-all criminal cases appealable to the Okla-. homa Criminal Court of Appeals, making the preparation of the case-made (or verbatim transcript), in essence, a condition precedent to the docketing of a criminal appeal in Oklahoma. The Supreme Court held in Williams that since a crim- inal defendant may take an appeal as a matter of right from any judgment against him, that to limit this right to only those who are able to pay for the preparation of a case-made is an.unreasoned distinction forbidden by the Fourteenth Amendment. . ‘However, there is no requirement placed on criminal appellants under Illinois procedure to first purchase a verbatim transcript before being afforded the opportunity to appeal. Petitioner Mayer was permitted to docket his appeal in the Ilinois Supreme Court and had available under the Rules of the Illinois Supreme Court methods other than the filing of a verbatim transcript in which to present evidence on appeal. Supreme Court Rules, 323 {c) and (d) state as follows: “(c) Procedure if No Verbatim Transcript Is Avail- able. If no verbatim transcript of the evidence or proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best avail- able sources, including recollection. It shall be served within 7 days after ‘the notice of appeal is filed. Within 21 days after the notice of appeal is filed, any other party may serve proposed amendments or his proposed’ report of proceedings. Within 7 days ° thereafter, the appellant shall, upon notice, present 11 the proposed report or reports and any proposed amendments to the trial court for settlement and .ap- proval.. The court, holding hearings if necessary, shall promptly settle, certify, and order filed an ac- © curate report of proceedings. (d) Agreed Statement of Facts. 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 proceedings.” However, as was noted in Point I of this brief, peti- tioner chose not to utilize either of these means. But, the essential consideration is that alternative, adequate methods to the purchase of a verbatim transcript are. possible under Illinois procedure in order to preserve evidence for ‘appeal. Since such alternatives were not ° available under Oklahoma law, the facts presented in __ Williams are critically different from those in the case- ° at-bar. Consequently, the holding in Williams does not control the decision to be made in the instant case. . Another important distinction to be drawn’ between Williams and the case-at-bar, indicating that Williams is not persuasive authority, is that in, Williams the defend- ant received a 90 day jail sentence and a $50 fine, where-. as in the present case, petitioner received two $250 fines for violations of two City of Chicago ordinances Muni- cipal Code of Chicago, Ch. 11, § 11-33 and Ch. 193 § 1(a)), which provided for maximum penalties of $500. . As will be discussed in Point ITI of this brief, an analysis of related cases by the Supreme Court indicates a mani: fest intent not to expand the right to free transcripts to. include cases where indigent defendants have been con- victed of. misdemeanors or ordinance violations: where the only possible punishment is a fine. | 12 IIl. A REVIEW OF SUPREME COURT DECISIONS IN . AREAS RELATED TO THE QUESTION OF FREE TRANSCRIPTS FOR INDIGENT DEFENDANTS IN- DICATES A CLEAR INTENT TO LIMIT THE GRANTING OF FREE TRANSCRIPTS ONLY TO DEFENDANTS WHO HAVE RECEIVED JAIL SEN- TENCES. In considering the merits of the present case, this Court is faced with the important question concerning whether or not to extend the right of an indigent -de- fendant to receive a free verbatim transcript for use on appeal to cases where the defendant has been found -_ guilty of a misdemeanor or ordinance violation, where the only possible punishment is a fine. Although it was stated in Griffin v. Illinois, 351 US. 12 (1956), the ‘first case granting the right to free tran- scripts to indigent defendants, that the aim of our entire judicial system is to permit all people charged with crime to “stand on an equality before the bar of justice in every American court” (351 U.S. at 17), it is the position: of the authors of this brief that this broad language has been, and indeed, must necessarily be, limited by this Court. A brief review of the recent deci- sions of this Court concerning the right to a jury trial ‘and the right to counsel indicates that this Court has endeavored to determine the rights of individual defend- ants in light of the rights of all defendants tried by the American judicial process. As Mr. Justice Frankfurter stated in his concurring opinion in Griffin: 13 “Nor does the equal protection of the laws deny a State the right to make classifications in law when such classifications are rooted in reason. The equality at which the equal protection clause aims is not a disembodied equality. The Fourteenth Amendment enjoins the “equal protection of the laws’’ and laws are not abstract propositions.” 351 U.S. at.21. Considering the concrete problems facing the bench ' and the bar of the United States, this Court has limited both the right to jury trials and the right to counsel. The right to a trial by jury has always been an in- tegral part of our American system of justice. Indeed, trial by jury was described'by Mr. Chief Justice Warren _in Singer v. United States, 380 U.S. 24 (1965) as “the normal and preferable mode of disposing of issues of fact - In criminal cases.” 380 U.S. at 35. In 1968, this Court was faced with the question of determining whether the Sixth Amendment, guaranteeing the right to a speedy and pub-: lic trial-in all criminal prosecutions, was to be made ap- plicable to the states by the Fourteenth” Amendment. In holding that the Sixth Amendment guarantees were pro- tected against. state action by the Due Process Clause of | the Fourteenth Amendment, this Court in Duncan v. Louisiana, 391 U.S. 145 (1968) noted that “trial by jury in criminal cases is fundamental to the American ‘scheme of justice.” (391 U.S. at 149). Yet, this Court also stated that it has been the long-established view that “petty of- fenses’’ may be tried without a jury. The rationale for this limitation was rooted in an historical view of jury trials: . : | “So-called petty offenses were tried without juries both in England afd in the Colonies and have always been held to be exempt from the otherwise compre- | hensive. language -of the Sixth Amendment’s jury 14 trial provisions. There is no substantial evidence that the Framers intended to depart from this estab- lished common-law practice, and the possible conse- quences to defendants from convictions for: petty of- fenses have been thought insufficient to outweigh the - benefits to’ efficient law enforcement and simplified judicial administration resulting from the.availability of speedy and inexpensive non-jury adjudications.” 391 U.S. at 160 (Emphasis added) When this Court was later called on to decide what. - was to be considered “petty’’ for the purposes of -déter- mining the right to a trial by jury, it ruled that a possi- ble six-month penalty is short enough to permit classifi- . cation of the crime as “petty.” Baldwin v. New York, 399 U.S. 66 (1970). Although this Court admitted that the disadvantages facing a defendant charged with a crime punishable with up to six months in prison were. - “onerous,” nevertheless, it followed the posture. enunci- ated in Dunan, supra. and held that the detriment in- ' curred by such defendants is clearly outweighed by the benefits accruing to the entire judicial system; i.e., keep- img the jury trial courts free to try serious offenses. Indeed, this Court, in promulgating its new Rules of” Procedure for the Trial of Minor Offenses before ‘United _ States Ma’ gistrates, 8-Cr. L. 3091, (January’ 27, 1971), © continued to draw the distinction’ between “petty” of- fenses and other crimes by denying the right to a jury in the trials of “petty” offenses. (Rule 3(c)(1)). ° This practical approach of analyzing thé extent of ‘ constitutional rights has also been utilized in determin: ing when an indigent defendant is to be permit d the right to appointed counsel. In 1963 the Supreme Court, in Gideon v.Wainwright, 372 U.S. 335, determined for the first time that an indigent defendant was. ertitled to oo a ( ‘ | - 15 | ppointed counsel when being tried for a félony. This | ourt, in. determining whether the Sixth Amendment ‘ right to counsel was fundamental and essential to a fair trial and, therefore, made obligatory upon the States by ~ the Fourteenth Amendment, looked to language of past decisions. Such language as: “The right to the aid of, counsel is of this fundamental character.’’ Powell v. Ala- bama, 287 U.S. 45, 68), and “The assistance of counsel ‘is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights*of life and liberty.” (Johnson v. Zerbst, 304 U.S. 458, 462 knee) led this Court to conclude at 372 US. 44: “Not only these precedents but also reason and re- flection require us to recognize that in our adversary . system of criminal justice, any person Haled into court, who is too poor to hire a lawyer, cannot be: assured a fair trial unless counsel is*provided for _ 4 ‘him. This seems to us to be an obvious truth.’ This Court, in a companion case to: Gideon decided the - same day, Douglas v. California, 372 U.S. 353 (1963), ex- | - *s 4 ‘teuded.the right to counsel .to appeals from felony con- ° . VY -- vietions. ‘Referring to Griffin v. Illinois, 351 U.S. 12° — - (1956), the Court noted. that once having gratited appel- late review, a State may not discriminate against some —~_ ° convicted defendants on account of their poverty. Citing“ \ Griffin once again, this ‘Court went on to state: “For there can be no equal justice where the kind of appeal a man enjoys depends on the amount of money he has.” 372 U.S. at 355. , like the broad language found in Dunan (supra.), ith regard to’the fundamental and important nature of jury trials, the language of the Gideon and Douglas deci- |. sions has“been limited in practieal application. The ques- tion of whether the right to counsel extends fo an indig- wT 1 1 ‘ . * ? \ ‘ Lf ; ; ———_—_ —_ 16 ent defendant facing misdemeanor charges has been con- sidered by several State and Federal courts, with deci- sions going both ways.’ However, this Court has refused to consider: the issue ‘on at least three occasions. In Win- ters v.° Beck, 385 U.S. 907 (1966), this Court denied certiorari in a case where a defendant was sentenced to 30, days in jail and received a $254 fine for the misde- meanor of immorality, after being: tried without the as- sistance of coynsel. Mr. Justice Stewart, dissented, along with Mr. Justice Black, noting that he would grant — certiorari because the Fifth Cireuit had ruled in two ‘other cases that the right to free counsel extends to mis- demeanors, thereby causing a conflict in law in the same circuit. (See footnote 1). Similarly, in DeJoseph y. Conn- ecticut, 385 U.S. 982 (1966) certiorari was denied. In that case a defendant, about to be tried for the misde- meanor of criminal non-support, alleged that he was in- digent. and requested that counsel be’appointed. Counsel was denied, the defendant represented himself, was found guilty, and was sentenced to six months. Once again Mr.° Justice Stewart dissented to the refusal to granf cert- iorari and was joined by Mr. Justice Black and Mr. Just- 1. Degisions holdivig that the right to counsel extends to indigent misdemeanor defendants include Harvey v. State of Mississippi,. 340 F. 2d 263 (5th Cir. 1965); Mc- Donald’ v. Moore, 353 F. 2d 106 (5th Cir. 1965); People v. Mallory, 378 Mich. 538, 147 N.W. 2d 66 (Mich. 1967). Decisions denying court- appointed counsel for misde- meanors include People v. Dupree, 42-Ill. 2d 249, 246 N.E. 2d 281 (Ill. 1969), Cert. Denied, 396 U.S. 1047 (1970); Winters v. Beck, 239 Ark. 1093, 397 S.W. 2d 364 (Ark. 1965),. Cert. Denied, 385 U.S. 907 (1966); DeJoseph v. Connecticut, 3 Conn. Cir. 624; 222 A. 2d 752 .(Conn. 1966), Cert. Denied, 385 U.S. 982 (1966) ; State v. Bennett, 266: N.C. 755, 147 S.E. 2d 237 (N.C. 1966). 17 ice Douglas. Finally, in People v. Dupree, 42 Tll. 2d 249, 246 N.E. 2d 281 (Ill. 1969), the defendant was convicted of battery, a misdemeanor and was sentenced to two - years probation, with the first 90 days to be served in jail. Since the maximum sentence possible was six months in jail and a $500 fine, the Illinois Supreme Court ruled that the defendant did not have to be informed of his right ‘to counsel. Once again cerfiorari ‘was denied over the dissent of Mr. Justice Black. 396 U.S. 1047 (1970). Acting in a manner consistent with the denial of cert- iorari in’ these three cases, this Court, in issuing its Rules of Procedure for the-Trial of Minor Offenses be- fore United States Magistrates, 8 Cr. L. 3091 (January 27, 1971), pointedly failed to include the right to ap- pointed counsel for indigent defendants charged with petty offenses. (See dissent of Mr. Justice Black with Mr. Justice Douglas for a discussion of the issue at page 3093). It is the position of the authors of this brief that this decision to limit the right to counsel to indigent defend- ants accused of*non-petty offenses is once again based on practical considerations. As the Illinois Supreme Court noted in People vi, Dupree, supra.: -“To construe as defendant contends, a constitutional mandate that defendant have counsel in all eases, irrespective of the seriousness of the offense, the | punishment involved or defendant’s request for coun-” sel, unless the record shows his express waiver, . would impose burdens upon the bar and bench in no. - way required or contemplated by the landmark cases’ protecting constitutional rights in criminal proceed- ings.” (42 Tll. 2d at 256.) Indeed, a decision to. require counsel for all misde- meanor defendants would be strongly felt by the court — ek BESTE na RAS, TAA a ES 18 system as a whole and by the bar in particular. The social utility of expending the limited resources of the courts and the bar upon petty cases might well be called into question. Injecting lawyers into the approximately 40,000 to 70,000 misdemeanor cases handled each year by just the courts ‘of Cook County, which. also handle « 180,000 to 210,000 ordinance violation cases annually, would undoubtedly have profound consequences for the administration of both criminal and civil justice.’ Others have made the same observation about this problem in other jurisdictions. See Cableton vy. State, 243 Ark. 351, 420 S.W. 2d 534, 536-38 (Ark. 1967); Comment, The Indigent Defendants’ Right to Counsel. in Misde- meanor Cases, 17 S.W. LJ. 598, 612 (1965). . A concrete example of the impact on the bar of ex- tending the tight to cotinsel to all cases involving fines was found in People v. Letterio, 16 N.Y. 2d 307, 213 N.E. 2d 670 (1965), where the Court of Appeals of New York ruled that no. constitutional mandate exists re- quiring a court hearing a traffic case to advise a defend- 2. In 1970 the courts of Cook County disposed of 248,207 misdemeanor and ordinance violation cases. Statistial Report: Cases, Fees and Cost, 1967-1970, pre- pared by the office of Matthew Danaher, Clerk of the Cir- euit Court of Cook County, Illinois. The total misde- meanor casés are no longer kept separate from the total number of ordinance violation cases. In 1963, the last time such figures were kept distinct, it was found that - there were 4 ordinance violation charges for every mis- demeanor charge in Cook County. Administrative Office of the Illinois Courts, 1967 Annual Report to the Su- , preme Court, p. 82. These figures are, of course, exclu- sive of the over 1,200,000 Cook County traffic cases dis- posed of annually. Danaher Report, p. 12. tZ7™ 19 ant of his right to counsel. The Court observed at page 672: “We point out that the practical result of assigning counsel to defendants in traffic cases would be chaotic. Assigning counsel in but 1% of these mil- lions of cases would require the, services of nearly half the attorneys registered in the State (See Tenth Annual Report of Judicial Conference N.Y. Legis. Doc., 1965 No. 90, p. 205).” Clearly, the limitation placed on the right of an indig- ent defendant to have the availability of appointed coun- sel, has been dictated by the practical considerations fac- ing the courts. Similarly, the question of the extent to which the right to free transcripts by indigent defendants should . be applied must be viewed with an eye on the probable impact on the bench and bar. As was noted in footnote 2, there were nearly one-quarter million misdemeanor and ordinance. violation cases disposed of in Cook County in 1970. If a constitutional rule were fashioned requiring that indigent defendants convicted of such charges be given free transcripts if they wished, doubtless some of them would avail themself of the opportunity. (It is esti- mated ‘that 25% of the defendants in misdemeanor cases are- indigent. Silverstein, Defense of The Poor in Crim- inal Cases in American State Courts (1965), Vol. 1, pp. 124-125). If but a fraction of one percent of*such de- fendants demanded free transcripts, the effect would be to, in essence, submerge an appellate court system that is already badly losing a battle to dispose of as many cases per year as are filed. The yearly figures published by the Administrative office of the Illinois Courts regarding the five districts of the Appellate Court of Illinois clearly - reveal that a severe crisis faces that court. On January i s Aaa oo ane ne iii Nata AAR iin stint nig at Re AN AA Sol fo I ETE 3 7 ‘= ® ° RESERV EE RSE NE A OT ON y satan’ - 20 1, 1967, the number of eriminal cases pending “in the five districts of the Appellate Court totaled 551. Four years later, December 31, 1970, that.figure had jumped to 1055, an inerease of 91.4%. The-civil docket has also’ increased, but not so dramatically (813 eases on January 1, 1967 to 1206 on December 31, 1970; an increase of 48.3%). Being entrusted with the burden of carrying a greatly increased caseload, the Appellate Court ‘in 1970, disposed of 40 eriminal cases which had been on the docket over three years; 153 cases 2 to 3 years old, 85 cases 11% to 2 years okd, 78 ecases.1 to 144 vears old, 115 cases 6 to 12 months old, and 94 cases under 6 months old. In short, nearby one-half of the defendants in the 565 cases decided by the Appellate Court of Illinois in 1970 had to wait over a year anda half from the date their appeal was filed until the date the case was decided. Very iiuntly, the Appellate Court finds itself in a ‘vicious circle, with no method: available to remove the circle. Although 1496 civil and criminal cases were dis- posed of in 1970 (1079 with full opimion—an average of 45 opinions per Justice), the Court found itself with a substantially heavier caseload on December 31, 1970, since 1856 cases were filed during the year (360 more cases filed than eases disposed). _ Although a new Fifth Division 3 was added to the First District of the Appellate Court: in November, 1970, in- creasing the Appellate Court panels in Illinois from 8 to 9, the increase of the number of Justices by one-eighth will not begin to solve the case-load dilemma. As was ~ noted earlier, the number of criminal cases pending in the Appellate Court has nearly doubled: in the. last -four years and the civil case load has increased by 50 percent. In addition, the Illinois Supreme Court has amended its — —~—— 21. own Rule regarding its jurisdiction over criminal mat-. ters. Since July 1, 1971, the effective date of the new: rules, the Illinois Supreme Court has now become a leave-to-appeal Court, permitting appeal. as.a matter of right only in criminal cases in which a statute of the United States or the State of Illinois has been held in-. valid and in appeals by defendants from judgments of the Circuit Courts imposing a sentence of death. All other appeals in criminal cases are to be taken to the Appellate Court (Rule 603, as amended July 1, 1971 Illinois Su- preme Court Rules). Quite obviously, the Illinois -Su- preme Court has divested itself of virtually all its erim- inal docket, since relatively few cases appear where a . criminal statute is held unconstitutional or a defendant is sentenced to death. Since there were 226 criminal deci- sions rendered by the Illinois Supreme Court in 1970 and since a great percentage of such cases will appear on the Appellate Court dockets in the future, the case-load prob- lem facing the Appellate Courts of Illinois ‘has become even more acute. | | In Klopfer v. North Carolina, 386 U.S. 213 (1967), this Court held that the Sixth Amendment’s quaranty of an accused’s right to a speedy trial was rendered applicable to the States through the Due Process Clause of the Fourteenth Amendment. If the right to a speedy trial is — guaranteed all defendants, most certainly the right to a speedy na, must also be included. But, when appellate courts such as those in Illinois are already faced with ease loads which are impossible to handle adequately, to impose a further burden of deciding cases a number of indigent cases such as the instant case, where the only punishment is a fine, would be a clear denial of due process for those defendants convicted of serious crimes i A a a ah a aa Cat hs 22 . and awaiting appellate decision. The language of Mr. Chief Justice Warren in this regard in Coppege v. United States, 369 U.S. 438 (1962) is particularly. instructive: “No general respect for, nor adherence to, the law . as a whole can well be expected without judicial recognition of the paramount need for prompt, emin- ently fair and sober criminal law procedures. The preference to be accorded criminal appéals recognizes the need for speedy disposition of such eases. Delay in the final judgment of conviction, in- cluding its appellate review, unquestionably erodes the efficacy of law enforcement.” (369 U.S. at 449.) Consequently, it is suggested that the same approach this Court has taken with regard to the light to jury trials be taken in deciding the instant issue. Although jury trials are “fundamental to the American scheme of justice’? Dunan, supra: at 149, this Court has limited the -right to ‘jury pee “petty” offenses, recognizing that the necessity fo cient law enforcement and effective judicial administration outweigh the possible adverse . consequences to defendants convicted of petty offenses. Duncan, supra, at 160. It is therefore suggested that the term “petty’’ also be utilized in determining what crimes would justify the granting of a free transcript to an in- digent defendant. It is further suggested that the case of Williams v. Oklahoma City, supra, has already provided the definition of a “petty offense” within this context, iLe., @ minimum of 90 days in jail. If this standard were established, then appeals by indigent defendarits who will never: have to face on day in jail would not be placed on already overcrowded appellate dockets, there- | by avoiding even longer determinations of cases involv- © ing serious crimes. ~The language ‘of Mr. Justice Marshall in Prank v. United States, 395 U.S. 147 (1969), is relevant to this _ 23 t% discussion. In Frank, it was determined that a charge of criminal:contempt is still to be considered “petty” for the purposes of determining the right to a jury ‘trial even though the defendant was placed on probation for three years. Mr. Justice Marshall noted at page 151: “Probation, of course, is a significant infringement of personal freedom, but it is certainly less onerous a restraint than jail itself.” Unlike a sentence of probation, where a defendant is quite restricted in his activity—being required to report periodically to his probation officer, being prohibited from associating: with certain types of persons, not being permitted to leave the probation district without the per- mission of his probation officer, etc.; the defendant in the instant case has had no such restraints placed on his freedom. And, under the.recent ruling of Tate v. Short, 401 US. 395 (1971), he cannot now be jailed for finan- cial inability to-pay the fine. Consequently, the facts in the instant case indicate -even more strongly than Frank, supra, that the offenses. here involved were “petty” in nature. Having been ‘charged with ordinance violations for which the only possible punishment was a fine, the petitioner was there- © fore not entitled to a free transcript for purposes of ap- ‘peal. However, if it were. to be determined that the petitioner should be given a free transcript.for appéllate purposes, then it would also seem that a defendant ni similar cir- cumstances should be entitled to free counsel on appeal. As Mr. Justice Schaefer of the [Illinois Supreme Court has stated: “Of all the rights that an accused person nd the* right to be represented by counsel is by far the most 24 pervasive, for it affects his ability to assert any other rights heymay have.’’ Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956). ~~ For a indigent defendant to = given a free transcript, but denied the knowledgeable hand of an attorney to — assist him’ on appeal would be to reduce the appellate process for such a defendant to a “meaningless ritual.” Douglas v. California, supra., 372 U.S. at 358. Furthermore, it would seem that if free counsel were to be required in all indigent appeals, the necessity of counsel at trial would tbe even more essential. For, as was stated in Gideon v. Wainwright, supra., citing Mr. Justice Sutherland in Powell v. Alabama, 287_U. ia 45, 68- 69 ( 1932) : . “The right to ‘be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman , has small and ‘sometimes no skill in the sci- ence of the law. If charged with crime, he is ineap- able, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules. of evidence. Left without the aid of coun- - .sel he may be put on trial without a proper charge, and convicted upon improper evidence or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to pre- pare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every _ step of the, proceedings against him: Without _it, though he be not guilty, faces the danger of “on- viction because he does ray know how to estabfish: 44-345. But,. if appointed counsel were to be granted at trial for indigent defendants who were charged with offenses his innocence.”’ 372 U.S. at . ar; which only permit a fine as punishment, such as the _ charges placed on the instant petitioner, then it would seem that free counsel would have to: be appointed in all instances where an indigent has beén charged with any violation involving a fine. If this were to occur, then the full time services of virtually the entire membership of - the bar would be required as appointed» counsel. (See- People v. Letterio, supra.) But even if defendants in . o traffic cases, were to. be excluded from these constitution- al guarantees, the fact nevertheless remains that nearly 250,000 misdemeanor and ordinance violatioh cases are disposed of yearly in Cook County, Illinois, alone. .(See- footnote 2, supra.) It cannot possibly be considered, that . ‘ this Court, realizing the obvious impact on the adminis- ., tration of justice if the right to counsel were extended to such cases, ever contemplated in Gideon that the right to counsel should be extended that far. Realizing thes impact that the logical extensions flow- ing from the ruling petitioner seeks in the case-at- bar, i.e., appointed counsel at both the appellate and trial levels, this Court must consider the practical considera- - tions inv olved and therefore, limit, as has been done with the right to trial by jury, the right to a free transcript . to only when an indigent defendant has been convicted of a.“non-petty” crime. It has been sated that “Illinois has shown a broad ‘and commendable latitute in implementing the principles. ; enunciated “in Griffin.” Norvell v. Illinois (dissent), 373 U.S. 420 at 426. Illinois, in exercising its right to promul- _ ‘gate its own Rules ‘of criminal procedure, (Spencer v. Texas, 385 U.S. 554, 569 (1967)) has ruled that the peti- tioner is not entitled to a free transcript since he was - charged with .an offense involving only. a possible fine. Since a State has a further right to moke reasonable - yO | 26 classifications without violating the¢Due Process Clause | of the Fourteenth Amednment, (Griffin v. Illinois, supra. (concurrence by Mr. Justice Frankfurter, 351 U.S. at 24; Douglas v. California ,supra., 372 U.S. at 356), the rul- ing made in the instant case is clearly constitutional, for © | it is not at all unreasonable to fail to require the same benefits for defendants convicted of “petty” offenses, such as the instant PER HODeT, as those provided to de- fendants convicted of ‘ ‘serious’ ’ offenses. . \ - CONCLUSION. _ For the reasons set forth herein, the office of the State’s Attorney of Cook Couny respectfully requests that the Order of the Supreme Court of Illinois denying the peti- tioner a free transcript for his | appeal to that Court. be affirmed. | Respectfully submitted, - % Epwarp VY. Han iRAHAN, State’s Attorney of Cook County, Hlinois, 900 Chicago Civic Center, Chicago, Illinois 60602, " 321-8750, ; Amicus Curiae. Vincent BENTIVENGA,- Chief of Civil Division, James A. Rooney, | Pauw P. Brepet, Jr., Assistant State’s Attorneys, Of Counsel. APPENDIX CRIMES PUNISHABLE ONLY BY FINE - UNDER -THE PROVISIONS OF THE CRIMINAL CODE OF ILLINOIS —s (ILLINOIS REVISED STATUTES, | . CHAPTER 38 (1969) _ "10. 1. § 12-1. Assault.] (a) A person * commits an as- sault when, without lawful authority, he engages in” con- duct which: places another in reasonable apprehension of receiving a battery. _ (b) Penalty. . A person convicted of assault shall be fined not to ex- “ced $500. i. $ 16-2. § 16-2. Theft of Lost or Mislaid Property.] A petson who obtains control over lost or mislaid property commits theft when he: (a) Knows or learns the identity of the owner or. knows, or is aware of, or learns of a reasonable method | of identifying the owner, and ” ° 5 (b) Fails to take reasonable measures to restore the ‘property to the owner, and (¢) Intends to d@prive the owner permanently sf the use or benefit of the property. i _ @ Penalty. | | . : A person convicted of theft of lost or 5 ttisiaid property shall be fined not to exceed $500 or double the value of such property, whichever is greater. 29A-1. Offering a Bribe.] § 29A-1. A person commits | commercial bribery when he confers, or offers or agrees 28 to confer, any benefit upon any employee, agert ev fiduci- ary without the consent of the latter’s em?.jover or prin- cipal, with intent to influence: his conduct i relation to his employer’s S OF eo et s affairs. | Added by P.A.°76-1129, § 1,\eff. Aug. 28, 1969. 29A-2. oosntiae’ a Bribe.] § 29A-2. An employee, agent or fiduciary commits commercial bribe receiving when, without consent of his employer or principal, he solicits, accepts or agrees to aecept any benefit from another per- son upon an agreement or understanding that ‘such bene- - fit. will influence his conduct in relation to his employer’s or principal’s affairs. | | Added by P.A. 76-1129, § 1, eff. Aug. 28, 1969. 29A-3. Penalty.] § 29A-3. A person eonvicted of ecom- mercial bribery or commercial bribe receiving shall be fined not to exceed $5,000. Added by P.A. 76-1129, § 1, eff. Aug. 28, 1969. * 32-1. § 32-1. Compounding a Crime.] (a) A person com- pounds a crime when he receives or offers to another any consideration for a promise not to prosecute or aid in the prosecution of an offender. (b)