Hardy v. United States/Concurrence Clark

Mr. Justice CLARK, concurring in the result.

A half dozen years ago, 28 U.S.C. § 1915 clearly directed that no indigent appeal may be taken 'if the trial court certifies in writing that it is not taken in good faith.' The words of the statute are identical today but the Court's interpretations have stripped them of the apparent congressional meaning. In Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), we said that counsel must be appointed to represent an indigent who wishes to contest the validity of a certificate under § 1915 and that such counsel must be 'enabled to show that the grounds for seeking an appeal from the judgment of conviction are not frivolous and do not justify the finding that the appeal is not sought in good faith.' At 566 of 352 U.S., at 551 of 77 S.Ct., 1 L.Ed.2d 593. In Farley v. United States, 354 U.S. 521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957), counsel for the indigent claimed that the evidence was insufficient to justify the conviction, and this Court required a transcript to be furnished on that point. A year later in Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), it appeare that counsel appointed by the Court of Appeals 'performed essentially the role of amici curiae,' 356 U.S. at 675, 78 S.Ct. at 975, 2 L.Ed.2d 1060, and the Court held that 'representation in the role of an advocate is required,' ibid., vacating the judgment on the concession of the Solicitor General that the question of probable cause raised by petitioner could not necessarily be called frivolous. In 1962 in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21, the Court held:

'It is not the burden of the petitioner to show that his     appeal has merit, in the sense that he is bound, or even      likely, to prevail ultimately. He is to be heard, as is any     appellant in a criminal case, if he makes a rational argument      on the law or facts. It is the burden of the Government, in     opposing an attempted criminal appeal in forma pauperis, to      show that the appeal is lacking in merit, indeed, that it is      so lacking in merit that the court would dismiss the case on      motion of the Government, had the case been docketed and a      record been filed by an appellant able to afford the expense      of complying with those requirements.' At 448 of 369 U.S., at      922 of 82 S.Ct., 8 L.Ed.2d 21.

Today we are faced with the question whether counsel, appointed on an appeal to represent an indigent, but not present at the trial of the case in the District Court, is entitled to a full transcript so as to enable him to determine whether plain error or defects affecting substantial rights occurred during the trial. As I see the problem, the Government has not met the burden placed upon it by the above language in Coppedge, namely to sustain the frivolity of the appeal, insofar as plain error is concerned. I appears to me that the Government must furnish the full transcript in order to enable petitioner's new counsel to determine whether plain error occurred during the trial, and likewise to enable the Court of Appeals to pass upon the point.

While I dissented in Coppedge as well as Farley, I feel bound by their holdings and therefore concur in the result here. In so doing, I trust that when Congress adopts the Criminal Justice Act or similar legislation which provides compensation for counsel representing indigents, the same counsel who tried the case in the District Court will be appointed in the Court of Appeals.

Mr. Justice HARLAN, dissenting.