*1 DOUGLAS al. v. CALIFORNIA. et No. Argued April 34. 17, 1962. Restored to the calendar rear gument 25, Reargued June January 16, 1963. 1962. Decided March 1963. n

Marvin M. Mitchelson and Burton Marks reargued the cause for petitioners. With them the briefs were A. L. Wirin, Fred Okrand and Nanette Dembitz. James,

William E. Assistant Attorney General Cali- fornia, and Jack E. Goertzen, Deputy Attorney General, argued the respondent. cause for With them on the briefs Mosk, was Stanley Attorney General.

Mr. Douglas delivered opinion of the Justice Court.

Petitioners, Will Meyes Bennie and William Douglas, were tried jointly convicted a California court on an information charging them with 13 felonies. A single At the them. represent was defender

public a con- moved defender trial, commencement complicated, very was *2 the case stating tinuance, be he should felt as he prepared not as was that he day, every defense a different handling he was because peti- between of interest a conflict there was and that counsel separate of appointment requiring tioners Thereafter, denied. was motion This them. for each of unpre- claiming he was defender, dismissed petitioners separate for motions again renewed pared, and denied, also were motions These continuance. and a of all by jury ultimately convicted were petitioners and deadly awith assault robbery, included which felonies, murder. Both commit intent assault weapon, and of as appealed Both terms. prison given were court That Appeal. of Court District the California 10 Cal. 802, 2d App. 187 Cal. affirmed convictions. their petitioned Douglas then and Meyes1 Both Rptr. 188. Supreme in the California discretionary review further a hearing.1 without were denied petitions their Court, but 195. Rptr., at We 10 Cal. 813, 2d, App. at. 187 Cal. S. 815. 368 U. granted certiorari. peti- in the presented are questions

Although several only one of ourselves we address certiorari, tion for and requested, petitioners shows The record them. even on appeal, of counsel assistance denied, were deny- In indigents. they were appeared though plainly Court District California requests, ing petitioners’ record through” the “gone it had stated that Appeal hearing denial notation While the petitioned only Meyes that Court Supreme indicates review, attempts Douglas’ at further hearing, and silent for a expressly filed on was petition for review shows that the record therefore, Meyes Douglas, have and Both Douglas as well. behalf properly before us. both cases state remedies exhausted their (3). S. 28 U. C. §

and had come to the conclusion good that “no what- could by appointment ever be served of counsel.” 187 App. 802, 812,10 Cal. 2d Rptr. 188,195. Cal. The District Court of Appeal acting was with a accordance Cali- fornia rule of criminal procedure provides which that state appellate courts, upon request of an for coun- sel, may “an independent make investigation of the record and determine whether it would advantage be of to the defendant or helpful to court to have coun- appointed. sel . . . After such investigation, appellate courts appoint should counsel if in opinion their it would be helpful to the defendant or the court, deny and should appointment if in their judgment such appointment would of no value either the defendant or the court.” People Hyde, 51 Cal. 2d *3 154, P. 2d 42, 43.

We agree, however, with Traynor Justice of the Cali fornia Supreme Court, who said that the of “[d]enial counsel on appeal indigent] an would seem to be a dis [to crimination at least as invidious that condemned in v. Brown, Illinois . . . .” People v. 55 Cal. 2d Griffin 64, 71, 357 P. 2d 1072, 1076 (concurring opinion). In Illinois., v. 12, State, U. S. we may held that a Griffin grant not appellate review in a way such toas discriminate against some convicted defendants on account of their poverty. as in There, Draper Washington, post, p. 487, right the to a transcript free on appeal was in issue. Here the issue is whether or not an indigent shall be denied the assistance of appeal. counsel on In either case the evil is the same: against discrimination indigent. the For there can be no equal justice where the kind of an appeal a man enjoys “depends on the amount of money he has.” supra, at p. 19.

In spite of California’s forward treatment of indigents, present under its practice the type of an appeal a per- son afforded in the District Court of Appeal hinges of the assistance pay he can not or

upon whether on the passes court appellate can If he counsel. of benefit full having only after his case merits If he can- counsel. argument and oral briefs written merits prejudge is forced court appellate not should counsel whether determine it can even before only the proceedings stage in At provided. unless and, indigent, for the speaks record barren committed, been has injustice show pages printed Any on appeal. champion without go forced he is showing that his had he have chance real decides the court him when deprived merit is hidden has assist- of the record examination parte an ex required. is not of counsel ance might problems concerned not here We are aof preparation for the denial from the arise beyond the mandatory review discretionary or petition have the claims at which process appellate stage in the by an upon passed lawyer presented been once dealing only with court. We first alike poor rich and as a matter granted appeal, criminal convic- from a 1237), Penal Code §§ (Cal. would California whether now decide needWe tion. a discre- seeking for an provide have after Supreme from tionary hearing convic- his had sustained Appeal District Court Appeal, Rules 4c;§ Const., VI, Art. Cal. (see Cal. tion *4 for must be or 29), whether 28, Rules of affirmance of an seeking review indigent an or right as by appeal this his conviction within the which lies of certiorari a writ petition to observe is appropriate But it discretion. Court’s Amend- Can, Fourteenth consistently a State does the result long as for differences so ment, provide or “invidious process of due an ato denial not amount Co., 348 Optical Lee Williamson v. discrimination.” y. 483, U. S. 489; supra, p. 18. Absolute equality is not required; lines can be and are drawn and Texas, we often sustain Tigner them. See 310 U. S. 141; Cleary, Goesaert v. 464. U. S. But where the merits of the one and appeal an has right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich poor. and

When an indigent is forced gantlet to run preliminary showing of merit, to appeal does not comport with fair procedure. In the federal courts, the other hand, indigent must be afforded counsel on appeal challenges whenever he a certification that appeal is not taken in good faith. Johnson v. United States, 352 S.U. 565. The federal must honor his courts request regardless of what they think the may merits of the case be; “representation in the role of an advocate is required.” States, Ellis v. United 674, U. S. 675.2 In California, however, once the court “gone through” has the record and denied counsel, the indigent has no prosecute recourse but to his on his own, as best no can, he matter how meritorious his case may turn out to be. The present case, where counsel was petitioners denied on appeal, shows that the discrimina- tion is not “possibly good between and obviously bad cases,” but between cases where the rich man can require the court to argument listen to of counsel deciding before merits, poor but a man lacking cannot. There is society deprive “When acts to one of life, its members of his re-, liberty property, or steps. general it takes its most awesome No spect for, to, expected nor adherence the law as a whole can well be judicial recognition paramount without prompt, need for emi nently procedures. fair and sober criminal law The methods we employ in aptly the enforcement of our criminal law have been called quality the measures which the judged.” our civilization Coppedge States, United 369 U. S. 449.

358 Amendment Fourteenth demanded equality

that right, enjoys as of appeals who man, the rich where record, research into the examination counsel’s benefit of behalf, his arguments on marshalling law, of the by a preliminary burdened indigent, already while the is forced to merit, is without his case that determination record is unclear where the indigent, The for himself. shift meaning- to only hidden, has errors or the meaningful appeal. has a rich man while the ritual, less of the District Court judgment We vacate further that court for the case remand Appeal and opinion. inconsistent with this proceedings ordered.

It is so Clark, dissenting. Mr. Justice S.U. in my I adhere to vote Griffin case, it always understood Ias have (1956), but, obli do with the It had to State’s here. not control does appeal. furnish record gation to free that the was out State pains point took There we effective affording adequate and means “find other Id., at 20. indigent defendants.” review in its just has done Here California all indigents appeal. We attorneys furnishing forma, inof overwhelming percentage know that of this Court Statistics are frivolous. appeals pauperis are of this filed petitions of the here over show that 96% light experience, in of a like variety.1 California, for the filing application of an upon provided has Appeal District of counsel the appointment investigation of the record “an independent make shall reveal that Clerk of this Court from the office Statistics pauperis petitions for cer- 1,093 38 of the 1961 Term forma pauperis appeals, all (3.4%). granted Of 44 tiorari were forma summarily (2.3%). but one dismissed were *6 and determine whether it would be of advantage to the defendant or helpful appellate court to have counsel appointed.” People Hyde, 2d Cal. 152, 154,331 P. 2d 42, 43 (1958). California’s courts did that here and after examining the record certified such an appointment would be neither advantageous petitioners nor helpful to the court. It, go refused to therefore, through gesture the useless of appointing an attorney. In my view neither the Equal Protection Clause nor the Due Process requires Clause more. I cannot understand why the Court says that petitioners afforded “a meaningless ritual.” To appoint an attorney would not only have utter extravagance been and a waste of the State’s funds but as surely “meaningless” petitioners.

With this new fetish for indigency the piles Court intolerable burden on the State’s judicial machinery. In- if deed, the Court is correct may be that we should first clean up our own house. We have afforded indigent liti- gants much less protection than has California. Last Term we received over 1,200 pauperis applica- forma tions in of none which had we appointed attorneys or required a record. Some appeals were of right. Still we denied the petitions or dismissed appeals on the mov- ing papers alone. At the same time we had hundreds of paid cases which we permitted petitions or appeals to be filed with records but briefs counsel, after which they were disposed of in due course. On the other hand, California furnishes a com- plete record and if counsel is requested requires its appel- late either courts to (1) appoint counsel (2) or make an independent investigation of that record and determine whether it would be of advantage to the defendant or helpful to the court to have appointed. Unlike Brown, Lane v. today, post, decided p. 477, decision in these is not placed matters in the unreviewable discretion made but is or Defender Public itself.2 court clearly indigents is rights for the concern

California’s although the There, Hyde, supra. People revealed prosecution not undertaken Defender had Public nevertheless Appeal the District appeal, record to and the for counsel application referred of its members One Bar Association. Angeles the Los no he certified after which papers, these reviewed Despite this disclosed. ground was meritorious its own made Appeal District Court *7 of the record. examination independent used to my good Mother adage an old which There is had e., glass in houses “People i. who live me, to quote I dissent. stones.” best not throw whom Harlan, Justice Stewart Mr. Justice Mr. dissenting. joins, to has an absolute holding

In that of a criminal convic- counsel on state Equal Pro- appears rely both on the tion, the Court is, of the question course, The crucial here effectiveness unquestionably provided. In Lane appellate review which was Public De Brown, post, p. 477, decision of the the unreviewable v. precluded any appellate under Indiana law. As to review fender compared appellate review here as and effectiveness of the fairness (1956), Illinois, S. 12 the State conceded with 351 U. Griffin alleged transcript adequate trial necessity review of the of a Compare Id., of the Dis errors in that ease. at 16. statement by Appeal affirming “Further, here: the briefs filed in trict Court respects, Meyes Douglas adopted] to the rules in all conform [which clearly ably present possible points with written, all and are well authorities, prepared pertinent and were no doubt abundant citation of procedure brief and in one well versed in criminal law and writing. prejudicial appointing in counsel for There no error was Rptr. appeal.” App. 802, 812, 2d 187 Cal. Cal. defendants on 188, 195. guarantees procedure

tection Clause and on the of fair in inherent the Due Clause of the Fourteenth Process Amendment, emphasis protection.” on “equal obvious my In Equal apposite, view the Protection Clause is not application and its to cases can lead present like the one only judged results. This case should be mischievous solely under the Due and I do not Clause, Process believe provision. violates

Equal Protection. approach present To in problem Equal terms of the I is, submit, Protection Clause but to substitute resound- ing phrases analysis. I from approach dissented S. I am 12, 29, 34-36,1 U. constrained to dissent from implicit extension of the equal protection approach here —to a case which the State denies no one an appeal, keep but seeks within reasonable bounds which appellate instances assigned counsel will indigents.

The States, course, prohibited Equal Pro- tection Clause from discriminating between “rich” and “poor” as such in the formulation and application of their laws. far But it is a thing suggest different *8 provision prevents this the State from adopting a law of general applicability may that poor affect more harshly than it does rich, or, the other from hand, making some effort to redress economic imbalances while eliminating entirely. not them Every financial exaction which the State imposes a uniform basis is easily more by satisfied the well-to-do by indigent. than Yet I take it that no one would dispute the constitutional power of the State to a levy 1 majority The appeared rely, here, to as on a blend of Equal Protection and Due arriving Process Clauses in at the result. So far as the result in process that case grounds, rested on due fully accept authority I of Griffin. university, at a state charge tuition to tax, sales uniform municipal from a water purchase fix rates for to viola- fine for criminal a impose standard corporation, categories minimum bail various to establish tions, or the State that contended could it be Nor of offenses. more poor are acts which the crimes classify as may not there surely, rich. And are the than likely to commit provided law which attacking a state be no basis would fell those benefits simply because needy benefits for the purchase others could goods or services short of the for themselves. to the equal protection deny do not as these

Laws such Protec- Equal essential reason: fortunate for one less “an affirmative on the States impose does not tion Clause differences in eco- flowing from handicaps lift the duty to it be to To construe would so nomic circumstances.” philosophy leveling read into the Constitution concepts of our basic of the foreign many would be society. and The government proper relations between obligation to eliminate the evils a moral State have Equal Protection required it is not poverty, but can afford. to some whatever others give Clause as apparent present case, Thus should Washington, post, p. 487, and Lane v. Draper with Brown, today, prop- both decided is not one post, p. erly regarded arising under clause. California does poor having discriminate between rich and a uni- and policy permitting everyone form to retain dealing only rule having separate counsel, appointment for the of counsel for those the standards attorneys. own unable to retain their The sole classifi- cation established this rule is between those cases that regarded and those have as frivolous. believed merit no matter far And, course, might go how the state rule Illinois, supra, (dissenting opinion writer). at of this *9 providing in for indigents, it could never be ex- satisfy duty to pected affirmative one existed —to —if poor the place the same level as those who can afford legal best talent available. Parenthetically, it should be noted that if present may be problem equal as one of protection, viewed so may question right to appointed counsel at trial, and the analysis right Court’s of that in Gideon Wainwright, ante, p. 335, decided today, wholly un- necessary. The way dispose of Gideon short v. Wain- wright, in other words, would be simply say deprives State of equal protection whenever it him fails furnish with legal services, perhaps with other services as well, equivalent to those that the affluent defendant can obtain.

The question real I case, submit, this and the only one permits satisfactory analysis, is whether or not the state rule, applied case, this is consistent requirements of fair procedure guaranteed by the Due Process Clause. Of course, considering ques- tion, must sight not be lost of that the State’s respon- sibility under the Due Process provide Clause is to justice for all. Refusal furnish criminal indigents with some things that others can afford fall short constitu- tional standards of problem fairness. The before us is whether this is such case.

Dub Process. It bears reiteration that California’s screening its criminal appeals determine whether or not ought to be denies to no one to appeal. is not a case, Ohio, This like Burns v. 360 U. S. in which a court rule or statute bars all consideration of the merits of an appeal docketing unless fees are pre- paid. Nor is it like supra, in which Griffiin “petitioners State conceded that needed a transcript *10 364 alleged of their adequate appellate review get

in order to Here it is this Court S., at 16. trial errors.” U. to assertions notwithstanding California's which finds, law a matter of constitutional contrary, that as counsel impossible is unless “adequate appellate review” to the open And while left it appointed. has been adequate of affording States to devise “other means indigent defendants,” appellate effective review to is seem- decision establishes what S., 20, present U. at may left ingly an absolute rule under which the State employ- any protecting against means of itself without appeals.3 of counsel in ment frivolous adequate appellate precisely providing It was towards of what the concedes to be “Cali- part Court review —as indigents” forward treatment of the State fornia’s —that system today which the strikes formulated appellate courts system requires down. That the state appoint appeal any indigent counsel on defendant “if in except judgment appointment their such would be People of no value to either the defendant or the court.” Hyde, 51 2d 331 P. 2d 43. This 152, 154, 42, judg- Cal. investiga- ment can be an independent reached after tion of the reviewing trial record court. And even if denied, full on the accorded merits is indigent appellant, together with a statement of the why reasons counsel was not assigned. nothing There is present case, in the or in any other case that has been us, system cited to indicate that has resulted Quite injustice. the contrary, every there is reason to appellate believe California courts have made painstaking apply effort to fairly up the rule and to live Supreme to the State g., Court’s mandate. e. See, the dis- provides California law appeal, if counsel is fix paid by court shall a reasonable fee to be the State. California Penal Code 1241. It is of course clear that this Court § require compel attorneys its State to donate their services. 480-482, 2d App. Vigil, 189 Cal. People cussion 321-322. Rptr. 319, 11 Cal. one as the in a such case today held Lave

We the services an absolute us, there is before ante, p. 335. Wainwright, Gideon v. at trial. here stand involved procedures appellate But the First, footing. constitutional entirely different *11 Amend- the by Fourteenth required itself review is see Durston, 684; 153 U. S. McKane v. ment, is presented question and thus supra, at respect rules the State’s narrow one whether arbitrary or unreason- are so of counsel appointment procedure appellate particular in the context able, of established, their invalidation. require that it has appeal may arise that Second, questions kinds of that led of the proceedings the record circumscribed variety large encompass the they do not conviction; to the must be resolved that strategic problems and of tactical Third, rule, its as California applies at the trial. and con- expert of the benefit appellant receives indigent his case on the merits of appraisal of the legal scientious assigned not he is and whether or record, trial basis of the appeal. consideration his full counsel, guaranteed is conclude broad brush to painting with too a It would be like a trial. appeal just is circumstances under these that in Cali- constitutionally offensive finds the Court What to the striking resemblance procedure fornia’s bears of last resort many state courts of this rules filed appeal or for petitions leave certiorari of this practice se. pro defendants Under the indigent certiorari petition appears if from Court, proceed is leave to a case review that merits forma Appellate to the transferred the case granted, pauperis gen- our review is appointed. Since and counsel Docket, given we not even and since are often erally discretionary, the dis- proceedings below, in the of a record the benefit petitioner might regarded advantages indigent to the than in But as conscien- as more substantial California. great principle as this Court is to the tiously committed it has never deemed itself Law,” Justice Under “Equal to assist in constitutionally required appoint 1,000 pro of each of the more than se preparation currently being for certiorari filed each Term. petitions experience appellate own that know from our We should fair generally go way give out of their considera- courts unrepresented. who are to those tion distinguishes present review from the The Court our rule relates to grounds case on the Ante, right.” granted as matter appeal, “the first significance I fail to of this difference. p. 356. But see the Surely, requirements it cannot be contended are exhausted once an has been fair Brown, given post, one Cf. Lane v. review. having p. suggested ap- 477. Nor can it well be pointed necessary counsel more to the fair adminis- tration of in an initial as a justice taken matter *12 which right, reviewing court on the full record has already determined to be than in frivolous, petition a asking higher appellate a court to exercise its discretion to consider what be a substantial claim. constitutional in Further, there no indication or in record, this us, state cases cited to that differs any in from respect screening material of appeals in federal criminal cases that is prescribed by 28 U. S. C. recently as Term, § 1915. As last in Coppedge v. United States, S. we had occasion pass upon U. application Although statute. decision estab- stringent power lished restrictions on the of federal courts application reject appeal leave to paur forma peris, recognized it nonetheless the federal courts prevent expenditure could the needless public funds summarily disposing of appeals. frivolous Indeed in some since system, the federal has outdone respects, California on the merits in all and an transcript provides matter how frivolous. cases, no prohibits State, agree I cannot Constitution at its bar of seeking to redress economic imbalances full from tak provide indigents review, and to justice guard against expense. ing steps reasonable needless I Accordingly, is all that has done. would This California judgment.4 affirm the state they Petitioners also contend that were denied the effective assist claim, my view,

ance of counsel at trial. This is without merit. reading petitioners’ A of the record leaves little doubt that dismissal of their their efforts counsel and to obtain a continuance *13 designed delay proceedings and, likelihood, were in all to manu appealable Moreover, facture an issue. trial court acted well denying within constitutional bounds in the claim that there was a Douglas Meyes required conflict interest between separate appointed attorney for each.