HOLMES v. UNITED STATES

BAZELON, Chief Judge:

Arrested in the early morning hours of September 14, 1965, appellant was charged with grand larceny and destruction of private property. Following a preliminary hearing, appellant was held for action of the grand jury. Although pre-trial bail was set, appellant remained in custody because he could not afford the premium on a bail bond. An indictment was returned and appellant stood trial on January 3, 1966. The jury acquitted him on the larceny charge, but found him guilty of destroying private property, a misdemeanor. 22 D.C. Code § 3112 (1961), now 22 D.C. Code § 403 (Supp. V, 1966). On February 11, 1966, the district judge imposed the maximum six month sentence, and subsequently denied a motion to credit pre-trial custody against the sentence. Leave to appeal in forma pauperis was granted on March 7, 1966 and the trial transcript was ordered prepared at Government expense.

In accordance with our usual practice, we appointed counsel to represent appellant and provided that the time for filing appellant's brief would not commence to run until the trial transcript had been docketed as a supplemental record. Thereafter, a frustrating series of delays was encountered, and the transcript was not docketed until July 8th. On July 11th, appellant was released from jail having served his sentence.

We think it clear, and the Government does not argue otherwise, that appellant had a statutory right to a trial transcript, 28 U.S.C. § 1915, and that such right necessarily included reasonably prompt receipt of the transcript in order that prosecution of the appeal for which it is furnished would not be thwarted. The Supreme Court has recognized the essential nature of the transcript. Hardy v. United States, 375 U.S. 277, 282, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), which Mr. Justice Goldberg called "the most basic and fundamental tool of [the] profession * * *." 375 U.S. at 288, 84 S.Ct. at 431 (concurring opinion). Delay in the preparation of transcripts is a problem we face with disturbing frequency. We know from our discussions with district judges that there is a serious shortage of reporters and that they now labor under unusually heavy workloads. We are also advised that the District Court has recently added temporary reporters in an effort to ease the mounting backlog of transcripts which have been ordered but not prepared. The record does not show why this particular transcript was delayed, nor do we think it necessary to search for the cause. More than likely, delay in preparation of transcripts is an amalgam of many factors. But where we deal with a statutory right, even the most plausible of reasons cannot serve to excuse outright denial of that right. It is only because of a jurisdictional objection interposed by the Government, to which we now turn, that we find it unnecessary to decide today whether reversal is the proper remedy for unreasonably delayed transcripts, or whether some other form of relief is appropriate.

Citing St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L. Ed. 1199 (1943), the Government contends that appellant's unconditional release renders the case moot. Although St. Pierre so holds, later cases have made it clear that a matter remains justiciable, even though the sentence has been served, if there is some collateral disadvantage which the party might reasonably be expected to incur by virtue of the conviction. We were unwilling to decide this issue on the scant data in the record and called for supplemental memoranda from the parties. The Government lists fourteen misdemeanor convictions which appellant has incurred in this jurisdiction since November, 1961, including a previous conviction for this identical offense. Appellant does not challenge the accuracy of the Government's representation in this regard. In these circumstances, we find no collateral disadvantage which appellant might incur by virtue of this, his fifteenth misdemeanor conviction. Accordingly, we consider St. Pierre controlling, and hold that this case is moot.

This is not a result we comfortably reach for the record indicates that this appeal became moot simply because appellant lacked the funds to post a nominal appeal bond or to purchase a trial transcript. But the Supreme Court cases, resting as they do on jurisdictional grounds, seem to us to preclude an exception under the circumstances of this case. What we said in another context is apt here. "We are getting better at supplying legal aid to the poor. We are, it is true, gradually eliminating the disparities between the ideals and the realities of our system of justice. But the situation is far from tolerable." Powell v. Zuckert, 125 U.S.App.D.C. 55, 58, 366 F.2d 634, 637 (1966).

Dismissed.

BURGER, Circuit Judge, concurs in the result.

BURGER, Circuit Judge (concurring in the disposition):

There is no doubt that the great increase in criminal trials and appeals has helped to create a critical problem in the delay of the preparation of transcripts. At the end of January, there were approximately 17,000 pages of transcript ordered but not supplied because of the reporters' press of work. Because of discussion of the reporter crisis in the majority opinion filed January 18 and because of the failure of the Judicial Council to deal with the problem administratively, I feel constrained to point out that a major, if not the decisive, cause is a factor that lies largely within the control of this court and ought to be remedied by us. In short, the reporter crisis is largely a self-inflicted wound arising out of our practice of appointing new counsel for virtually every appeal by an indigent rather than continuing the trial counsel who is familiar with all facts and issues in the case. Trial counsel should continue in the case in a large proportion of cases.

Since this discussion began, five court reporters have been added on a temporary basis to meet the emergency situation, and this very likely explains the improvement which the Per Curiam notes. If these reporters become a permanent addition, the added permanent cost would be almost $50,000 per year; this would represent the reporters' base salary, but not other expenses of their operation.

The point I wish to make is that this added expense is to a large extent wasteful and unnecessary. The problem can be vastly improved even if not totally solved in a more efficient manner and on a more long-range basis by appointing trial counsel to handle a substantial number of appeals. I am gratified that my proposal has finally, after much delay, brought forth a recognition by my colleagues that the Council has an obligation to deal with this matter. The proposal to use trial counsel has received no attention from the Court except as it has been surfaced in this case.

Private litigants who lose cases in the District Court sometimes, but not always, take appeals to this Court. Before they do so they make a sober appraisal of their prospects of success on appeal and the probable costs. Unless the prospects seem reasonably encouraging the private litigant usually decides not to put "good money after bad" and accepts the trial outcome. And when the private litigant takes an appeal he does not ordinarily need a complete transcript of the record since, except in a lengthy trial, the recollection and trial notes of the lawyer serve most of the need.

But this is not done with the criminal cases of indigent defendants. The government furnishes a lawyer, as it should, to assist him in his defense. If there is a guilty verdict, as there is in most cases as a matter of statistical fact, the government also gives him a free appeal. At this stage the Court appoints a different lawyer to prepare and argue the appeal.

The new lawyer must then try to learn all that went on before, and the best source is a verbatim transcript of the trial, preparation of which is often extensive in time and expensive in cost. The private litigant does not engage in the expensive luxury of a new lawyer on appeal or if he does so in a rare case his trial counsel remains available to tell the new lawyer what went on at trial thus reducing if not eliminating the need for a transcript.

The lawyer newly assigned by us for appeal is put to the test; in a sense, he is challenged to unearth some error. Because someone else has tried and lost, the new lawyer must gain a victory if he is to satisfy the indigent defendant, and if on appeal he fails to raise every conceivable point — no matter how frivolous — the indigent, if he loses, will likely embark on a campaign of attack on his counsel. A large number of baseless postconviction attacks on lawyers point up this possibility.

Surely the appeal lawyer thus put to the test and aware of the hazards of future attack from convicted prisoners cannot be blamed for wanting all the tools necessary for handling an appeal in a case which he did not try. A transcript is the basic tool in these circumstances, even though all of it may not be necessary in every case. By this program the appeal can become more expensive than the trial and indeed far more expensive a process than most private litigants can afford. The indigent need not consider the cost factor as the private litigant must; the lawyer appointed on appeal is doing simply what we ask of him.

I would not go so far as to say that trial counsel should conduct the appeal in every case but it seems obvious that there are numerous advantages, of which cost is not a decisive one, in continuity of representation in the great majority of cases. Continuity as the general practice would eliminate a large part of the problem of delay in transcripts and duplicated work of counsel, each of whom must be paid.

All this is compounded by the hard fact that fewer and fewer accused persons are willing to plead guilty; they prefer to go to trial, on the theory, however dubious, that they have nothing to lose. Whether providing defense facilities at public expense is the reason for this recent decrease in guilty pleas or whether accused persons have some vague notion that everything is "going their way" because of our legitimate concern for defendants, I am unable to say. But the realistic fact is that a large number of cases which ought to be disposed of by guilty pleas — for the best interests of the accused — are being tried, and the automatic free appeal under Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), then floods court reporters with demands for thousands of pages of verbatim transcripts with which they are not able to cope. In the fiscal year 1966, 272 convictions were followed by 252 appeals, most of which were at public expense, REPORT OF THE PRESIDENT'S COMMISSION ON CRIME IN THE DISTRICT OF COLUMBIA 303 (1966).

I do not suggest that retaining the trial lawyer on appeal would eliminate all need for complete transcripts, nor do I suggest that it be done automatically in every appeal. I do suggest it is a fallacy to treat all criminal trials as the same kind of "animal"; some are long, some short, some are simple, some complicated. The need for a full transcript in a one or two day trial is very different from that in an extended trial, and the majority of criminal cases in this jurisdiction are tried in two days or less. With deference to the concurring utterances of Justice Goldberg in Hardy v. United States, 375 U.S. 277, 288, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), I submit that a competent lawyer who has tried a short, simple case does not ordinarily need a full transcript; he can do without a full transcript unless his appeal rests on insufficiency of the evidence and even then he does not need the voir dire examination, closing arguments, or the instructions, which often amount to half the transcript.

Judges Bazelon and Leventhal suggest that appointing trial counsel to the appeal will not reduce the demand for transcripts since full transcripts were ordered in all the recent cases where appointed trial counsel did argue the appeal. What this overlooks is that at the present time it is automatic for an appointed counsel to ask for a full transcript because we have casually allowed it without reference to need; no lawyer worth his salt needs the complete transcript on appeal for a case which he tried in two days or less. Since new counsel appointed on appeal require and receive full transcripts, such a demand seems to have become a matter of course for all counsel. If court-appointed counsel are casually demanding full transcripts simply because the transcript is "free," this is a matter which surely should have long since engaged the attention of a court concerned with sound judicial administration and reasonable allocation of public resources. These transcripts are "free" only in the sense that they are supplied at public expense.

My colleagues contend that appointing new lawyers on appeal effects a more equitable division of the burden among lawyers than would continuing the trial lawyers on appeal. But I fail to see how appointing a trial lawyer to conduct the appeal would place any greater burden on him than does the present arrangement. A lawyer handling both trial and appeal should receive roughly half as many appointments. Moreover, he would be required to spend less time on two stages of one case than if he had to familiarize himself with two different cases at either stage.

My colleagues urge another ground for appointing new counsel on appeal. New counsel, they say, view the case with a "fresh eye"; perhaps this is a euphemism for saying they embark on a quest for error at the risk of being charged with ineffective performance if they do not find it. But in applying the decisional and statutory laws relating to indigents, perhaps we should ask whether Congress and the Supreme Court intended that the public should pay the additional costs required for new counsel to gain a "fresh approach" when this rarely occurs for the accused person who pays his own way. Moreover, the "fresh approach" often delays the appeal while the new lawyer waits for the transcript and then studies it. Balancing the chance that a change of counsel might benefit a particular appellant against the obvious waste involved in needless transcripts, delays in the proceedings, and duplication of legal work and cost, I would make the choice for retaining trial counsel on appeal in most cases, provided the District Judge certifies in some way that counsel is competent.

It is also suggested that a full transcript is needed to aid this court; this is simply not so as to the great majority of our cases. A full transcript is rarely required except on a genuine claim of insufficient evidence; the parties surely can agree on a statement of the evidence presented in short trials, using a transcript only for disputed and crucial testimony. Even on a claim of insufficient evidence we do not need the transcript of examination on voir dire, the closing arguments of counsel, or the Court's charge. The only "aid" I can see is that providing the court with a full transcript in every case enables judges of this court to comb through it to find some error which has thus far eluded all others. But I submit that this court's delegated function is not to act as a third appointed counsel and I question whether Congress intended or will support such a system.

In 1966 indigents were provided with almost 65,000 pages of transcript at public expense, the cost being nearly one dollar per page. The current "crisis" arises from the fact that in January 1967, when the majority opinion was released, reporters were about 17,000 pages "behind" and appeals were delayed as a result. It is a matter of simple arithmetic that the elimination of about 25% in indigents' demand for transcripts by reasonable supervision from this court would solve the problem, i.e., 25% of the 65,000 page total represents roughly the 17,000 pages of "delay." I submit that far more than 25% of the present demand for transcripts is readily avoidable and therefore fairly warrants characterizing our current problem as a self-inflicted wound.

Sooner or later perhaps there will be an awakening that these thousands of pounds of blue-covered transcripts prepared at large cost in many cases which are totally without merit on appeal might better be spent on the more significant aspects of the administration of justice such as preventive programs, better prisons, and improved rehabilitation treatment. The unfortunate man in the dock is not always best served by courtroom conflict and multiple appeals which prolong his warfare with society, sometimes for years, and erode whatever potential may exist for rehabilitation.

Bench and bar alike need to make a sober re-examination of what we are doing and consider whether it really serves society or its delinquents to become so obsessed with the techniques of judicial machinery that we forget the purposes of a system of justice.