George H. Cash v. United States

George CASH, Petitioner, H. America,

UNITED STATES Respondent.

Misc. No. 878. Appeals Court of

United States Circuit. of Columbia

Feb.

Judgment June Vacated See _ , , ,.

Edgerton, Judge, dissented. Chief “appropriate procedure”

would be represent appoint this court to counsel him.1 appointed

This court counsel di prepare him rected a memorandum on petitioner. Upon behalf of the considera memorandum, of tion colmsel’s the Gov opposition, reply ernment’s and a memo by counsel, randum submitted we con- ques dude that raises no authorizing tion of law which an Justifies pauperis. petition in The forma denied, although therefore be at the time we same commend counsel for his diligent peti efforts on behalf of the indicate, tioner. We also wish to for the benefit of may members of the bar who upon represent be called persons situations, approval similar ap of what pointed case; counsel did in this al though recognize, we course, of this particular procedure may appro not be priate or And, available in all cases. be currently being there cause filed and in this court a multi Eugene Washington, Gressman, Mr. of proceed tude on Potions by Court), peti (appointed for D. C. criminal cases prepayment without of tioner costs, fees and appropriate consider it , , Atty., Gasch, . Mr. Oliver U. S. .. I.. understanding to discuss our a the con n d Carrol Nathan Messrs. Lews J. sMeratio„ gOTerilillg disposition Paulson, Atty., respond Asst. U. S. such ation8 formerly Eisenberg, ent. Mr. Milton Atty., appear U. S. also Asst. entered an matter is covered Section 1915 respondent. (a), ance Title Code,2 United States which part: reads in Pertinent Judge, Chief Edgerton, Before “Any court Judges. States Prettyman Burger, Circuit commencement, authorize prosecution or suit, defense of Judge. PRETTYMAN, Circuit Proceeding, civil or crimi proceed petition for leave to This is a atfon wlthout nal’ thereln’ Pre' pauperis. Cash and Payment of fees and costs or secur robbery. convicted of were co-defendant lty by a who makes petitioned the District Court Cash alone ,the.?f°r; Cltiz1e1n affidavit that he 18unable to such Pa^ appeal. denied That court for leave therefor, glve secunty petition notation taken “not f ^ filed a faith.” Cash then similar not be “An taken in pro petition se in this court. The Gov- if the trial court for an ernment moved extension time writing suggesting certifies it not respond, good faith.” taken petitioner was then counsel without it (1948). Stat. 954 2. 62 352 U.S. 1. Johnson v. United (1957); 550, 1 L.Ed.2d U.S.App.D.C. Ellis v. United (D.C.Cir.1957). 249 F.2d 478 alia, point said, we here make. He inter of this section The substance only subject: on the gives “When a State not bare allowance of the statute is not leave for correction does allow of an court This always, pay trial cost person errors but must for the appeal; a convicted may pro- legal right indigent, its exercise statutes, under our appeal, provided, appeals are tect course, itself so that follows frivolous moneys public not needlessly spent.”4 subsidized and pre- the time the rules acts within provides is scribed. the statute What may dispense that the courts nobody supply can but true that It is sad certain condi- under payment of costs every possessed privilege o the t by Every phase administration tions. indigent Every cannot the well-to-do. judicial per- money; judges, costs of law by of most defense one the be afforded etc., staff, etc., prosecutor sonnel, s the lawyers skilled, experienced at the most supplies paid, be etc., must must money People who have the bar. those is portion A of costs purchased. foolish, spend a wish it for useless liti to litigants. by upon The the imposed law gation principle, so. No either can do dispensing with of tlm statute rationale legal moral, implies public or that the litigant by is any a such contribution indigents ought supply with the costs though justice done even should be that litigation. But, 0f if foolish or useless the costs of its cannot meet accused the justice of the is involved in achievement in- accused cannot If an administration. given matter, public the a is interest has been com- some error that dicate guch public pay will the costs that the his of conviction the course mitted necessary justice poor. insure the suggest justification that cannot principle This is the involved in the stat ^ done, being justice there is no is not considering, ute arewe is such why pay public should the the reason piain provision. problem The basic necessarily ap- inhere in an which costs pellate the administration of the is: statute There is no ra- consideration. when and under what circumstances supports appeal an without tionale which public ap should the bear the of an costs e., merely appeal, for sake of i. jn cost the pea¡ a criminal ease? The an short purpose. appeal merit an without justice sweris: Whenever is at stake. justice stake, poor the must is at When „ ., , petition pro . for leave to . A every vouchsafed justice c consideration receive e , „ judgment ,, appeal m a on from a cri moneyed; price of for the the n a i l m , be ,, ,, , 1915(a) pr ... ... case under Section yment without p paid by public. must the a the - e proceeds fees costs m 3 step steps. is The first the convicted in Griffin struck Supreme Court The indigent, behalf, pre precluded or someone in his an which state statute down a pares petition needing and files a in the District appellant, a appeal unless the Usually pro bought this is se. trial, Court.5 done The it. transcript of the petitioner most The instances is with stat- that under that pointed out Court always extensive education. out which Almost were committed ute, if errors even legal training. Always he appeal is without reversal, could be had no merited Always gave is cape funds. indigent. without he seeks con- es Court The by an judgment principle from the conviction the on status stitutional ground appears which to him Mr. Justice suit available. justice must be purpose. concurring, able for Frankfurter, made clear the application Illinois, People unless an State of 3. Griffin to, for leave was such first made 100 L.Ed. 891 76 S.Ot. U.S. by, District denied the Court. Waterman (1956). McMillan, U.S.App.D.C. 310, 135 4. Id., 351 U.S. at page page 24, 76 S.Ct. at (D.C.Cir.1943), F.2d 807 nied, certiorari de 322 U.S. 88 L. ordinarily (1944). Appeals Ed. 1580 not A Court appeal petition leave a for consider part step injustice his Every the is that has been done. The second petition. probably upon person the convicted has acts beliefs, object every ap such If and in it that sense allows peal good petition achieved; would be in is further consid The no faith. statute meaningless. plea would allowed to then eration to be We believe meaning. necessary. proceeds statute at the We think “good faith”, expense appears same in the the term States in this statute, manner as the costs of refer does substance un derlying by appellant. are If assertions of borne error petitioner. petition If grounds the may these District Court denies the asserted errors are clearly reversal, so do either with or without a certi or if they no have record, basis of fication taken in fact in the faith”, they are “not faith. Should the District Court deny petition certification, without discussing problem faced proceed is then free to determining the given courts whether or not petition court with appeals criminal are to be allowed seeking appeal, leave to allowance pauperis, de novo consideration of the merits the has said such are to be allowed petition. they may unless characterized . frivolous Frivolous has a collo hand, If, the other the Dis- on quila meaning trifling silly. or It also writing the certifies Court trict appeal meaning law, established when good faith,” the is “not taken ' ie manifestly insufficient aPPeaps> may says not be “[a]n statute futile",7 without fultile". merit and " plain The statute is as as that. taken”. 8 n being sense silly upon considerations intrude several But I these are never frivolous Petltiona “good simplicity. by isWhat meant the ml*d of Often, the Petitioner. seeking part petitioner on the faith” f owever, ey legal t are frivolous from criminal con- to take an being ln the sense of sense’ “without Of does viction? course it mean merl ana uti e . merely part sincere wish on the Supreme person Court, We believe convicted from extrication Farley cases,9 predicament the Johnson and or a sincere used the his belief on 637, States, supra denied, 28, 1, tiorari 317 U.S. 63 6. Johnson v. United note (1942); Surety page 566, 87 L.Ed. 513 page National at 352 U.S. S.Ct. at 77 Corporation Clement, Farley 22, 550; States, v. United 133 N.J.L. v. 354 U.S. (1945); Rudnick, 521, 523, 1371, 42 A.2d 387 Mead v. 77 S.Ct. 1 L.Ed.2d 1529 616, (1940); (1957). 306 Mass. 35 N.E.2d 485 Romaguera, Columbia v. Finance 40 So. English Dictionary (1933); 7. Oxford ; (La.App.1949) Palmer, 2d 749 v. Klade ed. 1914). Dictionary (3d Law rev. 581, (1941); 297 237 Wis. N.W. 365 Bouvier, Flanary Briscoe, 34, v. 189 Okl. 113 P. (1941); Parker, 2d 366 Leaver v. 121 Johnson, In United v. States 327 U.S. (9 Cir., 1941), F.2d 738 certiorari den (1946), 66 S.Ct. 90 L.Ed. 562 ied, Leaver Supreme v. Citizens Nat. Court, Trust & Mr. the writing Justice Black Savings Bank, 314 U.S. citing many cases, held that (1942); Appeals 86 L.Ed. 560 Fransen v. Ran Circuit own zino, (La.App.1956). So.2d 85 311 See should have dismissed motion following also the cases in Id., which page federal frivolous”. U.S. at “as 327 appellate courts have page Appellate denied 113, 66 S.Ct. at re- forma, pauperis: sought alleged Gomez United had been on the view States, Cir., (5 1957); 245 F.2d 346 ground trial court made errone- v. United fact, whereas, Parsell 218 F.2d findings 232 the Court ous Higgins (5 Cir., 1955) ; Steele, findings found, support- were indeed (8 1952). Cir., F.2d 366 Cf. by grounds Poulas v. also the evidence. See (9 Cir., 1938). F.2d upon courts dismissed as appeals in Piuma v. United frivolous (9 Cir., 1942), Supra F.2d 601 note 6. cer- agreed by legal meaning. statement trial counsel". word "frivolous" in its Sometimes, In this sense "frivolous" means without any where there is a conflict as shows, realistic chance of success on the to what the record merits, warranting opportunity without an issue con must be afforded the of re viewing transcript, equivalent appellate court, or an sideration out substantiation in the record. No or with transcript, proceedings, of the trial may allegat give so that he "substantiate his lower standard would realistic effect statutory provisions. ions".11 In the case at bar we have ~tothe made certain of the assistance of coun Assuming that the District Court has sel, and counsel has reviewed the record application appeal, denied an for leave to proceedings of the trial and has sum step procedure the third in this is a marized that record in considerable detail timely petition to this court. If the Dis- for our benefit.12 certificate, trict Court's denial is without simply before us is whether Second: We must determine on dispense payment with the of fees and "appropriate the basis of the means" costs. In the words of the statute we whether the trial court erred in its certi "may authorize" the In such a fication. As the indi

case this court pediment act without the im- States, sup cated in Johnson v. United of an adverse certification ra,13 petitioner may claim "that merely the District Court. We mine whether we will or will not allow deter- District Court committed error" in its certificate. He claim that the cer payment. without the usual tificate is "unwarranted" and that de spite ruling the District Court's "the If the District Court has certi appeal quoted should be allowed". The appeal fied that the is not taken in expressions Supreme reflect the Court's faith, petition we have two duties when a point. views on the tificate of the District Court our func In the face of a cer presented to us: First: We must make certain that the tion is a review function. If we decide petitioner appro has been "assured some adequate on the basis of an record that priate making means * * * of man error, the District Court committed we ifest the basis of his claim that the Dis "may appeal. But, peti authorize" the if certifying trict Court committed error in counsel, tioner has and if we have seen appeal pursued that the desired was not adequate an record and decided that the point peti faith." 10 At this error, District Court did not commit may tioner need the assistance of counsel may appeal. not authorize the The stat to enable him to make manifest the basis says.14 ute so of his claim of error in the District "appropriate The determination that the trial Court's certificate. Such court did or did not commit error de means", Supreme indicated, Court pends upon appeal sought judge's whether be "the district notes or an July 1, 1057; States, States, supra, Isaac v. United 10. Johnson v. United 830, Aug. 2, 1957; page 566, page Misc. Collins v. Unit- U.S. at 77 S.Ct. at States, 854, Aug. 26, Misc. It States, 11. Edwards v. United 350 U.S. 35 requested, however, was not and we be- (1957); 7S S.Ct. 2 L.Ed.2d 72 Far- prepared by lieve the record counsel ley supra. v. United Cf. Griffin adequate evaluating himself was People Illinois, supra. of State of claims of error. stenographic transcript 12. A of the trial pages 366, page 13. 352 U.S. at 77 S.Ct. at proceedings pre could have been ordered pared expense at the United emphatically, precise petitioner 14. More words had or his counsel so appeal may "[a]n of the statute are that requested. (1948), 62 Stat. 922 28 U.S (Emphasis supplied.) not be taken". § .C. 753. See orders of this court Alexander v. United Misc. “manifestly insufficient In the case bar the Govern would at correctly opposing defi- ment from An falls within refrained futile”. petitioner’s pro petition applicable an ade- law and se for leave when nition proceedings to quate trial this court record of the until we were appoint petitioner amply able cannot counsel and consider show that the realistically hope adequate the merits latter’s memorandum and an succeed proceedings. record of the trial of his His memorandum petitioner points treated each of the making a determination sought pro to raise in his se manifestly petition whether petitions presented to the Court insufficient, and this the District Court and to this court. Counsel had discussed only peti court look not at the face of the points petitioner these and with the alleged at basis. tion but also counsel, latter’s spelled trial and he them in Johns for our concluded, out however, consideration. He indigent peti an on15 vouchsafed grounds that these were opportunity “the make manifest tioner support elected instead to in order that of his claim” basis petition for leave to on what is his denial of in the error demonstrate essentially single, point new of law petition. And in Edwards16 the petitioner reasonably which the could not right spoke “to of the expected recognize have been himself allegations.” The bare his substantiate allegations counsel, but which on the basis of his re petition have thought transcript, view of the trial was judge’s notes, record, in basis in the petitioner. digested available to Counsel appropriate source. So or in some other proceedings account the trial allegation may manifestly error (which by he had had read to him has no and futile if fact it insufficient reporter court notes) from the latter’s record. basis in law or appendix form of a short to his mem digest orandum. The consisted of sum Any point of law raised testimony maries the direct of each of petitioner must have a basis in the rec and, separately labeled, witnesses ord, pleading of fact or in a either testimony such further as was elicited on Any point proffer. proce such must be cross and redirect examination. It also durally available; g., e. an instruction contained a résumé points of the crucial alleged erroneous to be must have been judge’s charge in the jury. to the The objected compliance with the rule opposition Government’s controverted or fall within the the orbit arguments counsel’s quent of law and fre made Ordinarily, discretion. court’s estab appendix. reference to his Peti govern, pe lished rules of law will but a tioner’s reply counsel filed a memoran urge reexamination, titioner and dum to the opposition. Government’s realistically ap such the court event will praise justification then, papers, the for a reexamina These form a substantial ordinarily ap Statutes will which we tion. be basis on are able to rule. Peti- written, plied petitioner may as but asserts as error tioner that his conviction challenge validity statute, upon uncoerced, the of a of was an extra-judi- based application him, confession, in which his principally cial by event corroborated tangible question If, must be substantial. tak the fruits of the confession. ing account, arraignment all considerations into the Prior to his peti- arrest manifestly voluntarily is “insufficient and tioner confessed to a friend futile”, police the District Court does err not on the force that he had committed certifying pickpocketing that it is taken not the for which he stands In faith. such event leave convicted. He then police- directed the alley must be denied. man to the where he had discarded page 566, page 15. 352 U.S. at at States, supra 16. Edwards v. United note together removing evi- cash circumstantial taken wallet after the stolen dence was found where that more consistent The wallet was not from it. guilt it, innocence,18 but than with established petitioner said discarded he had corpus delicti papers in it more than had been and were identification jury’s sufficient to sustain verdict. trial were found papers these there. At were evidence introduced into petitioner says In sum his con which the corroborate confession to viction should be his reversed because police con- was officer testified. There police admission to the officer was evidence siderable other circumstantial sufficiently Manifestly, on tending corroborated. confession: to corroborate the record, this is an and complaining insufficient identified the The witness ground futile attempt The having papers his been in recovered as legal meaning frivolous in the wallet; also identified term. having co-defendant been on the as crowded bus with him the his at time Finding suggestion peti- no persons wallet was stolen and as two has of suc- tioner chance realistic jolted who had were him three as the allowed, were cess alighting bus; from the the co-defendant hold that did not err Court testified he had been on the bus at the certifying was not time; (later and written confession sought Accordingly, faith. repudiated) by the co-defendant was in- provides, statute troduced. pauperis. peti- be taken The is denied. tion Supreme recent has The Court Petition denied. ly volun extent discussed the tary corroborated confessions must

by independent BURGER, Judge. in order to sus evidence Circuit held conviction.17 tain a fully Judge I concur with what corroborating both the justify evidence PRETTYMAN has said and add this jury that the an inference only importance comment because of the to establish confession true and tend ap- the volume corpus delicti, that, when so cor the roborated, peals affected. is sufficient to the confession recent cases1 the two independent a conviction. The sustain appeals in forma dealt with not, itself, need establish the evidence corpus delicti; right dealing pauperis, one with the is corrobora its function appellant to have counsel tion. right transcript to have a with the other expense. public dis papers These cases were at recovered at identification The strong by per opinions. The posed curiam cor- of were petitioner’s direction subject matter, They “tainted”, importance of the if in were roboration. suggestion through nothing else, rules out obtained evidence the sense that tainted, did not receive careful cases and were confession is coerced a voluntary Had the Court intended confes- consideration. as the admissible as change clearly in in basic standard papers a drastic a showed These itself. sion field,2 important it seems me veracity and, so a to when confession 1957, States, 147, States, v. 352 U.S. United Johnson 348 U.S. 1. v. United 17. Smith Parley 550, 593; Op 565, 194, (1954); 1 L.Ed.2d 77 S.Ct. 99 L.Ed. 192 States, 1957, 521, 84, 354 U.S. 77 per 75 v. United 348 U.S. United v. 1371, (1954). 1 L.Ed.2d 158, 1529. 101 S.Ct. 99 L.Ed. S.Ct. suggested argued. Wigfall been and As has v. 97 U.S. Cf. (D.C.Cir. 252, App.D.C. F.2d 220 230 1956).

739 would discussion treat- question, have some insufficient such as “without per- ment made The statute that clear. merit”,4 “futile”,5 “unworthy”,6 “mani- pauperis mits an in forma to be festly vexatious”,7 ques- “no substantial good denied if or dismissed “not taken tion”,8 “baseless”, meritorious”,9 “not “frivolous,” faith” Thus, ifor or “malicious.”3 appeals course as to in forma in its use pauperis, statutory words “frivolous” Farley “frivolous” in Johnson and was good “not taken in faith”.10 The merely using language. statutory involving appeals cases pauperis in forma nothing certainly There is in this which tendency reflect a equate these other imports any change itself in stand- terms to statutory terms and to use pauperis. ards for forma the terms interchangeably.11 Most of very most can be read brief into the these characterizations, including orders of the the Johnson and statutory terms, Farley cases on is a reliance the lan- have connotations and a guage range statute, meaning on than rather which render them many terms which courts used had inter- somewhat precise. less than If a “sub- changeably statutory terms. question” stantial applied ap- test is peals in pauperis forma in the sense have courts contexts the various important question, clearly it would variety terms describe used a Reid, 1948, * * * U.S.App.D.C. 180, 84 (d) 175 “The court states Section * 829, * * F.2d equated 831. The case latter if satis- case dismiss the “not taken in faith” to include cases or mali- frivolous the action is fied that where the substantially was one as to which lan- This was cious.” there was no reasonable basis for a guage dif it was first when of the statute ferent conclusion. 252). See also (27 Ellis passed v. Unit That in 1892 Stat. States, supra plaintiffs, note 9. only poor See also United dealt statute Johnson, 1946, States v. 106, 866) 327 (36 U.S. amended was 1910 Stat. but in 113, 464, 562, S.Ct. parties 90 L.Ed. defendants include involving pre-paid appeal, case in es- amendment The 1910 on Black, speaking Mr. privileges Justice pauperis tablishing in forma Court, said: appeal, parties stated no such on “ * * * Ap- the Circuit Court of privileges the court were available if peals studying here after opinion the issues certified upon determining raised only Thus, faith.” taken in was “not objection was to the trial court’s pauperis appeals be taken findings conflicting evidence, should good faith, or ma- frivolous and be present have Squab decided that this does not Plymouth Kinney Kock licious. issue reviewable of law and on its own Co., U.S. motion have dismissed the L.Ed. 457. (Emphasis added.) frivolous.” Cir., g., v. United 4. E. Gilmore 11. We should not overlook 28 U.S.C. § 753 1953, 131 F.2d 873. (f), Congress appears equate in which frivolous with the absence a substan- 5. Ibid. question: tial “ * * * transcripts Co., Fees for Brinkley R. furnish- Louisville N. & 6. See corpus proceed- ed in criminal or C.C.W.D.Tenn.1899, habeas 95 F. 345. persons ings sue, defend, allowed to paid shall be 7. Ibid. money ap- the United States of out propriated purpose. Cir., 1953, that Igoe, for 209 F.2d Fees v. for 8. Morris 7 transcripts Steele, Cir., Higgins 1952, proceedings 108; furnished in other 8 195 v. persons permitted 366, Aylor 369; States, to v. in see United forma F.2d pauperis paid by 1952, Cir., shall also be the 194 F.2d 968. Unit- 5 judge if the trial States or a circuit judge States, 1957, certifies that the is United 101 not 9. Ellis v. U.S. friv- presents App.D.C. ques- olous but a 249 F.2d 478. substantial ” * ** (Emphasis added.) tion. Taylor, 1946, 81 McMillan v. U.S. 10. See 217; App.D.C. 160 F.2d Wheeler v. 740 hand, ciary judge Committee, if

too “When a On the other said: strict a test. interpreted has question” is as heard a and it is to be case “substantial about * ** meaning ap- court, been, carried I peal as to an think has the it position judge question in a present is whether a or issue it is a proceeding captiously, viciously, merit, case or which or has substance some some any prejudice, prospect success, or with from other im- some then or scintilla litigant proper motive, high or whether the is it too a standard. An not proceeding good Cong. is question questions faith.” 45 which raises a or suggests peti- Rec. prospect 1533. No one has that have no no substance proceeding cap- tioner his counsel is merit success and is therefore without tiously, viciously, prejudice, or with “frivolous”, and “malicious” any improper or from “not motive. taken in faith.” In can another case the Solicitor “United General say States the To that Supreme agree advised the crimi- Court: “We defendants take afford to let that, does as Mr. Justice rich could take” appeals nal the that suggests pointed applica Frankfurter out on the of law but not a standard set socially arguably might tion bail Ward v. United a de- what Judge (decided “rich,” S.Ct. 1063 L.Ed.2d goal. Au [1 25] sirable gust 8, 1956), qualitative out, a there is dis pointed can take PRETTYMAN tinction between ‘frivolous’ and ‘lack of can almost take appeal, any, well-to-do the question’. a moderately substantial We further well-to-do can take agree Any urgency. that this Court has indicated some, depending on their Johnson argument equating United U.S. 565 the “rich” to Farley S.Ct. strong [77 1 L.Ed.2d “poor” 593] but has emotional important U.S. [77 factors. it overlooks some ‘frivolity’ Literally appeals L.Ed.2d is applied 1529] would make it proper mandatory “poor.” applied all crimi- If standard to be in de regardless reviewed, termining nal are to be lack of faith under the * * * Congress merit, pauperis should tell us so. statute. equated Neither case ‘lack of a substan ”1 question’ tial with ‘frivolous.’ In still Judge EDGERTON, (dissent- Chief case, ap another in which this court had ing). plied question” test, the “substantial Though judg- I cannot concur in the Solicitor General advised agree opinion, I court’s ment or agree proper Court: “[W]e including said, with much that is applied determining to be test wheth of counsel whom commendation court’s ap should be er defendant allowed represent petitioner. appointed peal ap is whether the I hard reconcile commenda- find frivolous, peal ques is not whether the ruling. my opin- In tion court’s is We tion substantial. believe that carefully ion documented contention substance, a difference there presented, mature which has been after merely terminology, these two by competent reflection, counsel has who standards, and that de except nothing gain duty sense proper standard to be termined done, frivolous. is not well frivolity. applied of lack of is that *** “good discussing do believe require- here [W]e faith” raised, probable 1915(a) that of now 28 U.S.C. § of what ment arrest, necessarily can for the Bacon, member of the Judi- cause Senator 7, opposition petition p. in Hill for a writ of certiorari to the v. United Brief 1. 911, U.S. S.Ct. 1157. though frivolous, even as characterized minor, by SLAUGHTER, Pearl Lenora may prove ultimately appeal unsuc friend, her mother and Mrs. Eloise next suggest it that therefore We sessful. Slaughter, Slaughter, and Eloise indi- appropriate remand be would vidually, Appellants, Court of for reconsideration cause appeal Appeals whether SYSTEM, Inc., Appellee. D. C. TRANSIT frivolous.”2 No. 14456. appeal a substantial An raise Appeals United States Court of unlikely yet question to succeed. and District of Columbia Circuit. raising Obviously short of one that falls Argued 21, Oct. very unlikely question is a substantial follow it is 13, does not that succeed. Decided It Nov. Even the costs frivolous. when appeal appeal prepaid, if the criminal are obviously groundless be dis it 39(a), F.R.Crim.P. missed under Rule clear if the 18 U.S.C. I think it proposed were now costs

prepaid, not dismiss the this would court permit would it briefed but argued way. If that be in the usual

true, prevents peti this court’s action proceed poor from

tioner because ishe

ing proceed could Though briefing were full

if he rich. argument probably oral would reversing petitioner’s

result convic

tion, counsel’s memorandum convinces possibility

me there would be 3 I reversal. think follows pauperis.

should allow an in forma urged govern- courts,

Some have counsel, poor

ment and counsel for de-

fendants should not be burdened with

appeals unlikely that are to succeed. To there are several answers. The

United States can afford to let de-

fendants take criminal

rich could take. It cannot afford do prose-

otherwise. And burden of

cuting, defending, deciding appeals,

though greater, it is inordinately is not

greater prosecuting than burden of deciding disputes, one, such as this

over whether an possible.

should be made opposition” pp. 3, 4, 2. “Brief in Douglas Herzog Ellis v. 3. See Mr. Justice United U.S. 99 L.Ed. 1299.

Case Details

Case Name: George H. Cash v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 16, 1958

Citation: 261 F.2d 731

Docket Number: Misc. 878

Court Abbreviation: D.C. Cir.