DOUGLAS et al. v. CALIFORNIA.
No. 34.
Argued April 17, 1962.
Restored to the calendar for reargument June 25, 1962.
Reargued January 16, 1963.
Decided March 18, 1963.
Marvin M. Mitchelson and Burton Marks reargued the ■ cause for petitioners. With them on the briefs were A. L. Wirin, Fred Okrand and Nanette Dembitz.
William E. James, Assistant Attorney General of California, and Jack E. Goertzen, Deputy Attorney General, argued the cause for respondent. With them on the briefs was Stanley Mosk, Attorney General.
Mr. Justice Douglas
delivered the opinion of the Court.
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. 187 Cal. App. 2d 802, 10 Cal. Rptr. 188. Both Meyes and Douglas then petitioned for further discretionary review in the California Supreme Court, but their petitions were denied without a hearing. 187 Cal. App. 2d, at. 813, 10 Cal. Rptr., at 195. We granted certiorari. 368 U. S. 815.
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.” 187 Cal. App. 2d 802, 812,10 Cal. Rptr. 188,195. 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.” People v. Hyde, 51 Cal. 2d 152, 154, 331 P. 2d 42, 43.
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 . . . .” People v. Brown, 55 Cal. 2d 64, 71, 357 P. 2d 1072, 1076 (concurring opinion). In Griffin v. Illinois., 351 U. S. 12, 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, as in Draper v. Washington, post, p. 487, 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.” Griffin v. Illinois, supra, at p. 19.
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 (Cal. Penal Code §§ 1235, 1237), 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 (see Cal. Const., Art. VI, § 4c; Cal. Rules on Appeal, Rules 28, 29), 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.” Williamson v. Lee Optical Co., 348 U. S. 483, 489; Griffin y. Illinois, supra, p. 18. Absolute equality is not required; lines can be and are drawn and we often sustain them. See Tigner v. Texas, 310 U. S. 141; Goesaert v. Cleary, 335 U. S. 464. 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.
When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. In the federal courts, on the other hand, an indigent must be afforded counsel on appeal whenever he challenges a certification that the appeal is not taken in good faith. Johnson v. United States, 352 U. S. 565. The federal courts must honor his request for counsel regardless of what they think the merits of the case may be; and “representation in the role of an advocate is required.” Ellis v. United States, 356 U. S. 674, 675. In California, however, once the court has “gone through” the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between “possibly good and obviously bad cases,” but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. 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.
While the notation of a denial of hearing by the California Supreme Court indicates that only Meyes petitioned that Court for a hearing, and is silent as to Douglas’ attempts at further review, the record shows that the petition for review was expressly filed on behalf of Douglas as well. Both Meyes and Douglas, therefore, have exhausted their state remedies and both cases are properly before us. 28 U. S. C. § 1257 (3).
“When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general re-, spect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.” Coppedge v. United States, 369 U. S. 438, 449.
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