In applying the doctrine of Griffin v. Illinois, 351 U.S. 12 , to a situation where no transcript of the trial of an indigent defendant is available due to the death of the court reporter, a State may, without violation of the Due Process or Equal Protection Clause of the Fourteenth Amendment, deny relief to an indigent prisoner who had a lawyer at his trial and presumably had the lawyer's continuing services for purposes of appeal and yet failed to pursue an appeal. Pp. 420-424.
25 Ill. 2d 169, 182 N. E. 2d 719, affirmed.
Thomas P. Sullivan argued the cause and filed briefs for petitioner.
William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General of Illinois, and Raymond S. Sarnow, A. Zola Groves and Edward A. Berman, Assistant Attorneys General.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was convicted of murder in the Illinois courts in 1941 and sentenced to 199 years in prison. Though indigent, he had a lawyer at the trial.
On the date of the sentence the docket entry reads: "Defendant Willie Norvell's motion for allowance of 90 days' time in which to prepare and file his bill of exceptions allowed." Presumably petitioner's lawyer made that motion, though the record does not indicate one way or the other. Petitioner tried to get a transcript. But again whether he acted on his own or through his lawyer we do not know. We do know, however, that because he [373 U.S. 420, 421] was indigent he was unable to pay the costs of the transcript and therefore did not obtain it; and he did not, moreover, pursue an appeal.
In 1956 we decided Griffin v. Illinois, 351 U.S. 12 , holding on the facts of that case that it was a violation of the Fourteenth Amendment to deprive a person because of his indigency of any rights of appeal afforded all other convicted defendants. And see Draper v. Washington, 372 U.S. 487 ; Eskridge v. Washington, 357 U.S. 214 . Cf. Burns v. Ohio, 360 U.S. 252 ; Smith v. Bennett, 365 U.S. 708 . Thereupon the Supreme Court of Illinois adopted Rule 65-1 (Smith-Hurd's Ill. Ann. Stat., c. 110, 101.65-1) by which the State provides a free trial transcript to every indigent person convicted of crime, whether he was convicted prior to the Griffin decision or thereafter. An important exception to that rule, applicable here, is the following:
The trial judge who heard this motion entered an order denying petitioner a new trial. The Supreme Court of Illinois affirmed. 25 Ill. 2d 169, 182 N. E. 2d 719. The case is here on a petition for a writ of certiorari. 371 U.S. 860 .
The issue in the case is whether Illinois has made an "invidious discrimination" against petitioner. Griffin v. Illinois, supra, p. 18. More precisely, the question is whether when a transcript cannot subsequently be obtained or reconstructed through no fault of the State, may it constitutionally draw the line against indigent who had lawyers at their trial but after conviction did not pursue their remedy? Illinois on the face of its rules draws no such distinction. But Illinois in the application of its rules has denied relief in such a case. 1 And so we have the narrow question - whether a State may avoid the obligation of Griffin v. Illinois, where, without fault, no transcript can be made available, the indigent having had a lawyer at the trial and no remedy having been sought at the time.
If it appeared that the lawyer who represented petitioner at the trial refused to represent him on the appeal and petitioner's indigency prevented him from retaining another, we would have a different case. Cf. Douglas v. [373 U.S. 420, 423] California, 372 U.S. 353 . Petitioner, who testified at the hearing on the motion, made no such claim. Nor did the lawyer, who testified as follows:
[ Footnote 2 ] The record in Griffin v. Illinois, supra, shows that such was not the case there.
MR. JUSTICE GOLDBERG, with whom MR. JUSTICE STEWART joins, dissenting.
I must respectfully dissent because the majority ignores what to me is the key to disposition of this matter. The Illinois Supreme Court decided this case under a misapprehension as to a crucial point of federal constitutional law, but for which it might have resolved the ultimate question in favor of, rather than against, the petitioner.
The Illinois court concluded that the decision of this Court in Griffin v. Illinois, 351 U.S. 12 , operated prospectively, [373 U.S. 420, 425] and not retroactively, in the sense that it invalidated only "existing financial barriers" to appeal. Given its view of Griffin, it was unnecessary for the state court to consider whether the petitioner, who concededly could not obtain a transcript at the time of his original conviction in 1941 because of his indigency, was at that time deprived of his constitutional rights. Enabled by this erroneous interpretation of Griffin to put aside this basic constitutional issue, the Illinois Supreme Court held only that its present rule, as applied to deny the petitioner a transcript now on his delayed appeal, was not unconstitutional because that denial was based solely upon the present unavailability of the transcript, and not upon anything related to the petitioner's indigency. The majority of this Court seems today to approve at least that holding of the state court, though on grounds different from those relied upon below.
The State Supreme Court was in error in its belief that the principles of Griffin have no application to denials of transcripts which occurred before Griffin was decided. Griffin was a constitutional decision vindicating basic Fourteenth Amendment rights and is no more to be restricted in scope or application in time than other constitutional judgments. This, it seems to me, is the clear import of this Court's decision in Eskridge v. Washington, 357 U.S. 214 . * [373 U.S. 420, 426]
Of course, we do not know how the Illinois court would have resolved the petitioner's claim that he is entitled either to a transcript or a new trial if it had viewed Griffin as having retroactive effect and as controlling with respect to the constitutional deprivation which may have occurred in 1941. Illinois has shown a broad and commendable latitude in implementing the principles enunciated in Griffin, and I would not presume to predict what its courts might do under a proper reading of that case. Because Illinois has not passed upon what is perhaps the controlling issue in the case, and because we ought not to anticipate and resolve difficult constitutional questions unless necessary, I would vacate and remand the case to the Supreme Court of Illinois to permit it to decide the question which it treated as foreclosed only because it believed Griffin's application not to be fully retroactive.
[ Footnote * ] The Illinois court said simply that Eskridge "did not hold that the failure to furnish defendant with a free transcript in 1935 denied him a right guaranteed by the fourteenth amendment, but held that the failure in 1956 to furnish him with a free transcript which was still available denied him of such a right." 25 Ill. 2d 169, 173, 182 N. E. 2d 719, 720-721. Eskridge was thus read to mean merely "that such financial barriers could no longer be imposed by the State even though the indigent defendant was sentenced prior to the time the restrictions were invalidated." Ibid. The issue in Eskridge, however, as presented on review of a 1956 state habeas corpus proceeding, was whether the petitioner there had been deprived of a [373 U.S. 420, 426] constitutional right when first convicted in 1935 because he was then denied a transcript with which to prosecute an appeal as an indigent; this Court decided that issue in favor of Eskridge. [373 U.S. 420, 427]