opinion: CHESSMAN v. TEETS, WARDEN.
  No. 893.
  Argued May 13, 1957.
  Decided June 10, 1957.
  George T. Davis argued the cause for petitioner. With him on the brief was Rosalie S. Asher.
  William M. Bennett, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Edmund G. Brown, Attorney General, Arlo E. Smith, Deputy Attorney General, and Clarence A. Linn, Assistant Attorney General.
  Mr. Justice Harlan
  delivered the opinion of the Court.
  Our writ of certiorari in this case was limited to the following question:
  “whether, in the circumstances of this case, the state court proceedings to settle the trial transcript, upon which petitioner’s automatic appeal from his conviction was necessarily heard by the Supreme Court of the State of California, in which trial court proceedings petitioner allegedly was not represented in person or by counsel designated by the state court in his behalf, resulted in denying petitioner due process of law, within the meaning of the Fourteenth Amendment to the Constitution of the United States.” 353 U. S. 928.
  We believe that a mere statement of the facts in this long-drawn-out criminal litigation, material to the issue now before us, will suffice to show why we have reached the conclusion that the judgment of the Court of Appeals, affirming by a divided court discharge of the writ of habeas corpus herein, must be vacated, and the case remanded for further proceedings.
  In May 1948, petitioner, following a trial by jury in the Superior Court of Los Angeles County, was convicted of a series of felonies under a multi-count indictment, and was sentenced to death upon two counts charging him with kidnaping for the purpose of robbery, with infliction of bodily harm, in violation of § 209 of the California Penal Code. In capital cases California provides that “an appeal is automatically taken by the defendant without any action by him or his counsel,” and that in such cases “the entire record of the action shall be prepared.” The Supreme Court of the State of California affirmed petitioner’s conviction by a divided court. 38 Cal. 2d 166, 238 P. 2d 1001.
  At the trial petitioner insisted upon defending himself, and repeatedly refused the trial court’s offer of counsel, although he did have at his disposal the services of a deputy public defender, who acted as his “legal adviser” and was present at the counsel table throughout the trial. About a month after the conclusion of the trial, the official court reporter of the trial proceedings suddenly died, having at that time completed the dictation into a recording machine of what later turned out to be 646 out of 1,810 pages of the trial transcript. Following the denial of petitioner’s motion in the Superior Court for a new trial, there ensued the preparation and settlement of the trial transcript constituting the appellate record upon which the California Supreme Court subsequently heard petitioner’s appeal. It is the circumstances under which this transcript was prepared and settled that give rise to the issue now confronting us.
  At the instance of the deputy district attorney in charge of the case, and with the approval of the trial judge, one Stanley Fraser, a court reporter and former colleague of the deceased reporter, Perry, was employed in September 1948 to transcribe the uncompleted portion of Perry’s shorthand notes, amounting to 1,164 pages as finally transcribed. In November 1948 petitioner unsuccessfully sought to have the California Supreme Court halt the preparation of the transcript on the ground that Perry’s notes could not be transcribed with reasonable accuracy. Fraser accordingly went forward with the work, and was occupied with it over the next several months. A “rough” draft of the transcript was submitted to the trial judge in February 1949, but was not made available to petitioner, although he had requested that it be furnished him. After this draft had been gone over by the deputy district attorney, it was filed with the judge in final form on April 11, 1949, and a copy was then sent to the petitioner at San Quentin Prison. Thereafter petitioner sent to the trial judge a list of some 200 corrections to the transcript, and at the same time moved that
  “a hearing be ordered ... to enable [petitioner] to determine actually the ability of Mr. Fraser to read Mr. Perry’s notes, and to enable the [petitioner] to offer a showing this is not, and challenge it as, a usable transcript, and to enable [petitioner] to point out to the court the many inaccuracies and omissions in this transcript, to prove these inaccuracies and omissions, and for the court to determine these matters . . . .”
  In these papers petitioner further stated that he had “not yet had the opportunity to confer with his legal advisor during the trial and consequently has been hesitant to offer error in certain instances until he has verified this error with his legal advisor.”
  Petitioner’s motion was denied and the matter continued to proceed on an ex parte basis to final conclusion. At hearings held on June 1, 2, and 3, 1949, in which petitioner was not represented in person or by an attorney, the trial judge, after hearing Fraser’s testimony as to the accuracy of his transcription and allowing some 80 of the corrections listed by petitioner, settled the record upon which petitioner’s automatic appeal was to be heard. Thereafter petitioner made a motion in the California Supreme Court attacking the adequacy of these settlement proceedings, complaining, among other things, that he had not been permitted to appear at such proceedings. While that motion was pending, on August 18, 1949, a further hearing was held before the trial judge with reference to the settlement of the record, at which two witnesses were examined. Again, petitioner was not represented at this hearing either in person or by counsel. The sufficiency of the record, as thus settled, was upheld by the California Supreme Court, first upon the motion just mentioned, 35 Cal. 2d 455, 218 P. 2d 769, and subsequently upon petitioner’s appeal from his conviction, 38 Cal. 2d 166, 238 P. 2d 1001.
  On October 17, 1955, this Court, reversing the Court of Appeals, remanded to the District Court for a hearing petitioner’s application for a writ of habeas corpus, charging fraud in the preparation of the state court record, which had been summarily dismissed by the District Court. 350 U. S. 3. This resulted in the judgment which is now before us. The District Court held that no fraud had been shown. The record of proceedings held before District Judge Goodman reveals the following additional facts as to the preparation of the state court record, none of which appear to be disputed by the State, which has been ably and conscientiously represented here: Fraser, the substitute reporter, was an uncle by marriage of the deputy district attorney in charge of this case, a fact of which neither the state trial court nor the appellate court was aware when it approved the transcript. In preparing the transcript, Fraser worked in close collaboration with the prosecutor, and also went over with two police officers, who testified for the State at the' trial, his transcription of their testimony. The latter episodes were likewise unknown to the state courts when they approved the transcript. The testimony of one of these officers concerned petitioner’s alleged confession, a subject of dispute at the trial, and petitioner’s list of alleged inaccuracies, already mentioned, related to some of that testimony. It also appeared at this hearing that Fraser had destroyed the “rough” draft of his transcription which petitioner had sought to obtain during the settlement proceedings.
  Under the circumstances which have been summarized, we must hold that the ex parte settlement of this state court record violated petitioner’s constitutional right to procedural due process. We think the petitioner was entitled to be represented throughout those proceedings either in person or by counsel. See Powell v. Alabama, 287 U. S. 45, 68; Snyder v. Massachusetts, 291 U. S. 97, 105; compare Dowdell v. United States, 221 U. S. 325, 331; Schwab v. Berggren, 143 U. S. 442, 449; see also Cole v. Arkansas, 333 U. S. 196, 201. If California chose to deny petitioner’s request to appear in those proceedings in propria persona, it then became, incumbent on the State to appoint counsel for him. Cf. Powell v. Alabama, supra. We cannot agree that petitioner’s refusal to be represented by counsel at the trial constituted a waiver of his right to counsel at the settlement proceedings. Moreover, it is at least doubtful whether, as a matter of due process, any such waiver would be effective to relieve the trial judge of a duty to appoint counsel for petitioner in connection with the settlement of this record, which was a necessary and integral part of the compulsory appeal provided by California in capital cases. We need not decide that question, however, for the record fails to show that petitioner ever waived his right to counsel in connection with the settlement of the appellate record.
  Nor can we regard the hearings before Judge Goodman, at which petitioner was both represented by counsel and personally present, as curing the lack of procedural due process in the state proceedings. Judge Goodman considered that our order of October 17, 1955, restricted the inquiry before him to the issue of whether the settlement of the state court record had been tainted by fraud, and that the accuracy of the record, as such, was not an issue in this proceeding. We accept fully Judge Goodman’s finding that there was no fraud. Even so, the fact remains that the petitioner has never had his day in court upon the controversial issues of fact and law involved in the settlement of the record upon which his conviction was affirmed.
  By no means are we to be understood as saying that the state record has been shown to be inaccurate or incomplete. All we hold is that, consistently with procedural due process, California’s affirmance of petitioner’s conviction upon a seriously disputed record, whose accuracy petitioner has had no voice in determining, cannot be allowed to stand. Without blinking the fact that the history of this case presents a sorry chapter in the annals of delays in the administration of criminal justice, we cannot allow that circumstance to deter us from withholding relief so clearly called for. On many occasions this Court has found it necessary to say that the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution. Evidently it also needs to be repeated that the overriding responsibility of this Court is to the Constitution of the United States, no matter how late it may be that a violation of the Constitution is found to exist. This Court may not disregard the Constitution because an appeal in this case, as in others, has been made on the eve of execution. We must be deaf to all suggestions that a valid appeal to the Constitution, even by a guilty man, comes too late, because courts, including this Court, were not earlier able to enforce what the Constitution demands. The proponent before the Court is not the petitioner but the Constitution of the United States.
  We have given careful consideration to the nature of the relief to be granted. Petitioner’s discharge is not to be ordered without affording California an opportunity .to review his conviction upon a record the sufficiency of which has been litigated in proceedings satisfying the requirements of procedural due process. Nor do we think it will do simply to remand the case to the District Court for an inquiry into the accuracy of the record upon which the California Supreme Court has already acted. The task of affording petitioner a further review of his conviction upon a properly settled record is necessarily one for the state courts. A federal court is in no such position as the state courts are to determine what inaccuracies or other facts might be decisive under state law, particularly in view of the unusual character of the issues here involved. We conclude, therefore, that our proper course is to vacate the judgments of the Court of Appeals and the District Court and to remand the case to the District Court, with instructions to enter such orders as may be appropriate to allow California a reasonable time within which to take further proceedings not inconsistent with this opinion, failing which the petitioner shall be discharged. Cf. Dowd v. United States, 340 U. S. 206, 209-210.
  It is so ordered.
  239 F. 2d 205. Chief Judge Denman dissented.
  West’s Ann. Cal. Codes, Penal Code, § 1239 (b).
  California Rules on Appeal, Rule 33 (c), 36 Cal. 2d 28.
  Where the making of a transcript of a civil trial becomes impossible by reason of the death or disability of the court .reporter, the California statutes empower the trial judge to set aside the judgment and order a new trial. West’s Ann. Cal. Codes, Code Civ. Proe., § 953e. The California Penal Code, however, contains no comparable provision.
  On September 16, 1948, when the appointment of the substitute stenographer was under consideration, the Chairman of the Executive Committee of the Los Angeles Superior Court Reporters’ Association wrote the Board of Supervisors respecting the matter, as follows: “We believe the purported charge against the county is not only an exorbitant one per se, but will reflect further adverse publicity upon our group because we have serious doubts that any reporter will be able to furnish a usable transcript of said shorthand notes. Other reporters of our number have examined and studied Mr. Perry’s notes and have reached the conclusion that many portions of the same will be found completely indecipherable because, toward the latter part of each court session, Mr. Perry’s notes show his illness. We feel that this should be brought to your attention.”
  On five previous occasions, this Court had denied petitions for certiorari filed by this petitioner. See note 13, infra.
  Petitioner alleges that there were other relevant circumstances that should have been explored in the state settlement proceedings, but could not, he asserts, be proved in the hearings before Judge Goodman because of inability to secure records and the attendance of witnesses from outside the Northern District of California.
  The following statement of the petitioner at the trial, quoted in the State’s present brief, hardly supports the claim of such a continuing waiver: “I wish to point out that it is my intention ... at this time [to represent myself] and to continue to do so until such time as it is legally established that I am not qualified to do so, and that I will not accept a court-appointed attorney.” See Johnson v. Zerbst, 304 U. S. 458, 464.
  See note 3, supra. In granting a certificate of probable cause for appeal to the Court of Appeals in the present proceeding, Chief Judge Denman noted: “How important the California law regards this transcription [of the trial proceedings] and certification [as to its correctness] by the reporter is apparent from the fact that in civil cases the death of the reporter before his transcription and certification, gives the trial court the discretionary power to set aside the judgment and order a new trial. California Code of Civil Procedure, § 953e. By some quirk in California legislation this does not apply to criminal cases. However, it is obvious that if the reporter’s transcript is so important as to give the court such power in a civil case, a fortiori it must have such importance in a criminal case in which, on the evidence to be transcribed, the accused is sentenced to death. Likewise its importance is emphasized by the California law making the appeal automatic from death sentences. California Penal Code, § 1239 (b).” In re Chessman, 219 F. 2d 162, 164.
  See note 2, supra. Counsel for the petitioner, whose- representations in this regard were not challenged by the State, informed us on the oral argument that the California Supreme Court customarily appoints counsel for the defendant when he is not otherwise represented by counsel on an automatic appeal.
  Judge Goodman did state, however, that he found petitioner’s claims with respect to certain alleged prejudicial comments by the trial judge and the prosecutor to be without foundation. In the context of the limited issue with which the judge was here concerned, we should be slow to regard these “findings” as possessing the same conclusiveness as if they had been made in a proceeding where the accuracy of the record, as such, was in issue.
  In view of our holding we cannot regard ourselves as concluded by the California Supreme Court’s holdings that the record on which it acted was adequate as a matter of state law, and that, in any event, the inaccuracies then claimed by the petitioner would not have changed the result of his appeal. Petitioner is entitled to have his conviction reviewed upon a record which has been settled in accordance with procedural due process. Moreover, in holding as it did the state court was not aware of the facts later developed in hearings before Judge Goodman, see p. 161, supra, and we cannot know that those facts, and others that might be disclosed upon an adversary hearing focused squarely on the adequacy of the transcript, would not lead it to a different conclusion.
  Certainly this Court’s previous denials of certiorari, 340 U. S. 840 ; 341 U. S. 929; 343 U. S. 915; 346 U. S. 916; 348 U. S. 864, do not foreclose us from now granting appropriate relief. Brown v. Allen, 344 U. S. 443. And it may be noted that it was not until the present proceedings in the District Court that the facts surrounding the settlement of the state court record were fully developed.
  In Mooney v. Holohan, 294 U. S. 103, this Court did not hesitate to deal with a claimed denial of constitutional rights some 18 years after the petitioner had been convicted in a state court. See also Price v. Johnston, 334 U. S. 266, 291.
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