Douglas v. California

372 U.S. 353

Case Year: 1963

Case Ruling: 6-3, Vacated and Remanded

Opinion Justice: Douglas

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Brennan, Goldberg, Warren, White


1st Concurring Opinion



1st Dissenting Opinion

Author: Clark


2nd Concurring Opinion



2nd Dissenting Opinion

Author: Harlan

Joiner(s): Stewart

3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In Gideon v. Wainwright, the Court declared that representation by counsel must be provided to indigents accused of criminal offenses. What the justices did not address was whether that right extended through the appellate process. If it did, then did it apply only to obligatory appeals (usually the first appeal after a trial) or also to discretionary appeals (subsequent appeals that the appellate court may or may not agree to hear)? In Douglas v. California (1963) the Court answered part of this question, holding that the right did indeed extend through the first obligatory appeal. JUSTICE DOUGLAS's opinion for the Court contains a statement of the facts.



Petitioners, Bennie Will Meyes and William Douglas, were jointly tried and convicted in a California court on an information charging them with 13 felonies. A single public defender was appointed to represent them. At the commencement of the trial, the defender moved for a continuance, stating that the case was very complicated, that he was not as prepared as he felt he should be because he was handling a different defense every day, and that there was a conflict of interest between the petitioners requiring the appointment of separate counsel for each of them. This motion was denied. Thereafter, petitioners dismissed the defender, claiming he was unprepared, and again renewed motions for separate counsel and for a continuance. These motions also were denied, and petitioners were ultimately convicted by a jury of all 13 felonies, which included robbery, assault with a deadly weapon, and assault with intent to commit murder. Both were given prison terms. Both appealed as of right to the California District Court of Appeal. That court affirmed their convictions.... Both Meyes and Douglas then petitioned for further discretionary review in the California Supreme Court, but their petitions were denied without a hearing.... We granted certiorari.

Although several questions are presented in the petition for certiorari, we address ourselves to only one of them. The record shows that petitioners requested, and were denied, the assistance of counsel on appeal, even though it plainly appeared they were indigents. In denying petitioners' requests, the California District Court of Appeal stated that it had "gone through" the record and had come to the conclusion that "no good whatever could be served by appointment of counsel."... The District Court of Appeal was acting in accordance with a California rule of criminal procedure which provides that state appellate courts, upon the request of an indigent for counsel, may make "an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed.... After such investigation, appellate courts should appoint counsel if in their opinion it would be helpful to the defendant or the court, and should deny the appointment of counsel only if in their judgment such appointment would be of no value to either the defendant or the court."...

We agree, however, with Justice Traynor of the California Supreme Court, who said that the "[d]enial of counsel on appeal [to an indigent] would seem to be a discrimination at least as invidious as that condemned in Griffin v. Illinois...." InGriffin v. Illinois, we held that a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. There,... the right to a free transcript on appeal was in issue. Here the issue is whether or not an indigent shall be denied the assistance of counsel on appeal. In either case the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys "depends on the amount of money he has."...

In spite of California's forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeal hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required.

We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike, ... from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction... or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an "invidious discrimination."... Absolute equality is not required; lines can be and are drawn and we often sustain them.... But where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor....

... There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal. We vacate the judgment of the District Court of Appeal and remand the case to that court for further proceedings not inconsistent with this opinion.

It is so ordered.


I adhere to my vote in Griffin v. Illinois (1956), but, as I have always understood that case, it does not control here. It had to do with the State's obligation to furnish a record to an indigent on appeal. There we took pains to point out that the State was free to "find other means of affording adequate and effective appellate review to indigent defendants."... Here California has done just that in its procedure for furnishing attorneys for indigents on appeal. We all know that the overwhelming percentage of in forma pauperis appeals are frivolous. Statistics of this Court show that over 96% of the petitions filed here are of this variety. California, in the light of a like experience, has provided that upon the filing of an application for the appointment of counsel the District Court of Appeal shall make "an independent investigation of the record and determine whether it would be of advantage to the defendant or helpful to the appellate court to have counsel appointed."... California's courts did that here and after examining the record certified that such an appointment would be neither advantageous to the petitioners nor helpful to the court. It, therefore, refused to go through the useless gesture of appointing an attorney. In my view neither the Equal Protection Clause nor the Due Process Clause requires more. I cannot understand why the Court says that this procedure afforded petitioners "a meaningless ritual." To appoint an attorney would not only have been utter extravagance and a waste of the State's funds but as surely "meaningless" to petitioners....


In holding that an indigent has an absolute right to appointed counsel on appeal of a state criminal conviction, the Court appears to rely both on the Equal Protection Clause and on the guarantees of fair procedure inherent in the Due Process Clause of the Fourteenth Amendment, with obvious emphasis on "equal protection." In my view the Equal Protection Clause is not apposite, and its application to cases like the present one can lead only to mischievous results. This case should be judged solely under the Due Process Clause, and I do not believe that the California procedure violates that provision....