Opinion
No. 71-1808.
September 1, 1972.
Burnett Miller, III, Asst. Atty. Gen. of Virginia and Andrew P. Miller, Atty. Gen., on brief, for appellant.
Professor William A. Reppy, Jr., Chapel Hill, N.C., Court-appointed, for appellee.
Appeal from the United States District Court for the Eastern District of Virginia.
Before HAYNSWORTH, Chief Judge, and CRAVEN and FIELD, Circuit Judges.
This excellent petition for rehearing is deserving of our most careful attention. Not only is the petitioner entitled to a complete explanation of an apparent disregard of precedent, but so also is the bar, and we are grateful to able and persistent counsel for affording us a long-awaited opportunity to explain to the bar and to the public some of our internal procedures in the disposition of what has become an enormous annual case-load.
The question on appeal in this case was whether there is a constitutional obligation on the states to furnish free to indigents trial transcripts for purposes of collateral attack absent a showing of need. We answered the question negatively in this case and had previously answered affirmatively in an unreported memorandum decision — at least where a transcript was in existence and possessed by the state or by petitioner's attorney.
In Knight v. Coiner, No. 14,940 (4th Cir. February 11, 1971), the petitioner had made numerous attempts to obtain a copy of the transcript of state court proceedings from his attorney at the time, or, in the alternative, a new copy at state expense. The memorandum decision contained an alternative order: that if the district court determines that a transcript exists, the court "may order the state clerk's office in which it is lodged to produce it, or, if it is in the possession of counsel, the district court may order counsel to surrender it."
We cited United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964), for the proposition that "a prisoner is not entitled to receive a free transcript for the purpose of combing it to discover flaws in his trial." We also commented that the Supreme Court has "required that judicial action be taken to aid the prisoner in acquiring the transcript" where one exists. But we failed to note what kind of judicial action, and that the Supreme Court had specifically declined to decide "whether there are circumstances in which the Constitution requires that a State furnish an indigent state prisoner, free of cost, a trial transcript to aid him to prepare a petition for collateral relief." Wade v. Wilson, 396 U.S. 282. 286, 90 S.Ct. 501, 504, 24 L.Ed.2d 470 (1970). Instead, unnoticed by us in our memorandum decision, the Supreme Court had suggested that the district court on remand should abstain from granting federal relief until other possibilities of obtaining a copy of the transcript, whether borrowing one from his codefendant or the state, or successfully applying to a state court, had been exhausted. Wade v. Wilson, supra.
It is thus apparent that our decision in Knight, supra, whether right or wrong, was not a carefully reasoned or fully expostulated one. We followed Wade, supra, but we did not track it closely. Instead of instructing the district judge on remand to initially pursue other remedies, i. e., dislodging the transcript from the possession of counsel, or abstaining in favor of action by a state court, we authorized him in the alternative to obtain the transcript either from the state clerk's office or from counsel, who, somewhat incredibly, insisted on retaining it against the interest of his former client.
In the opinion in the instant case, 4 Cir., 460 F.2d 150, which we are now asked to recall and reconsider, we did a better job. We went back beyond Shoaf, supra, to United States v. Glass, 317 F.2d 200, 202 (4th Cir. 1963), and relying on Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), made it perfectly clear that in this circuit "when a need for a transcript in order to collaterally attack a conviction is shown, equal protection and due process require the state to furnish an indigent prisoner such transcript without charge." We announced what seemed to us a proper corollary of that proposition: "the state may constitutionally decline to furnish an indigent with a transcript until a need for it is shown, even though the transcript is already in existence." We rejected any balancing test, stating quite clearly that where there is a need the right is absolute, regardless of expense or inconvenience to the state, and that where there is not, the right does not exist, regardless of how easily and inexpensively the state might be able to furnish a transcript.
Although we deliberately failed to mention Knight v. Coiner, we effectively overruled it. The two decisions are, of course, irreconcilable. Had Knight ordered relief against recalcitrant counsel only, there would be no conflict, but as explained, supra, the mandate was broader and ran against the state.
Quite properly petitioner now urges upon us that reconsideration is necessary in order "(1) to secure uniformity of decisions of this court and (2) to settle a question of far reaching importance: the status of precedent to be accorded an unpublished memorandum decision of this Court." We agree.
No appellate court can ever be much better than its bar. The bar of our court is the source of the raw material with which we work: facts, inferences, ideas, insights, and prior decisions, the stare decisis effect of which is now so forcibly called to our attention. But we cannot always use the bar, and if we were to attempt it, we think the bar could not possibly respond to our increased demands upon it with the degree of quality needed.
The best explanation of our problem, prepared ante litem motum, is perhaps Chief Judge Haynsworth's report to Mr. Justice Clark, then director of the Federal Judicial Center, on screening appeals and related matters in the Fourth Circuit. Set out in the appendix are excerpts from this report sent to the Federal Judicial Center in 1968.
Judge Haynsworth's report to the Federal Judicial Center demonstrates, we think, the compelling necessity for some abbreviation of normal procedures in the disposition of appeals that have now increased to 1,405 filed in fiscal year 1972, with a predictable rise in the years ahead. We believe that our screening procedures and disposition by unreported memorandum decisions accords with due process and our duty as Article 3 judges, but we confess its imperfection. We concede, of course, that any decision is by definition a precedent, and that we cannot deny litigants and the bar the right to urge upon us what we have previously done. But because memorandum decisions are not prepared with the assistance of the bar, we think it reasonable to refuse to treat them as precedent within the meaning of the rule of stare decisis. We prefer that they not be cited to us for an additional reason: since they are unpublished and generally unavailable to the bar, access to them is unequal and depends upon chance rather than research. For this reason, also, we will not ourselves in published opinions cite or refer to memorandum decisions. But although unmentioned, it should be clearly understood by the bench and bar that any prior memorandum decision in conflict with a subsequently published opinion is to be considered overruled.
Upon reconsideration, we adhere to our prior opinion and decision in this case. This opinion has been seen by all of the active judges of the court, none of whom have asked that the court be polled on the suggestion for rehearing en banc.
Motion denied.