Cell 2455, Death Row

by Caryl Chessman

  So, when brought to Death Row, my job was plain: establish, if I could, an illegal or unfairly obtained conviction. Fail and die. At bottom it was that simple, and yet I knew that job would take an awful lot of doing.

  The staggering immensity of the task is best suggested by citing a few facts and figures. Thus far, originally based upon 2400 pages of trial record, litigation of the case has involved the preparation and filing of seven appeal briefs, four petitions for writs of mandate, two petitions for writs of prohibition, nine petitions for writs of habeas corpus, four petitions for rehearing, four petitions for a certificate of probable cause to appeal, five petitions for stays of execution, four petitions for writs of certiorari, with either supporting briefs or memorandums of points and authorities usually accompanying the petitions; two motions to augment and correct record, three motions for hearings, and a complaint in equity; plus numerous other incidental papers necessarily prepared and filed. These documents listed contain more than 450,000 words in all.

  I estimate that at least three thousand hours were consumed in actual preparation, while I have spent, conservatively, another ten thousand hours in study. (Attorney fees are computed ordinarily at $20 an hour. At this rate, even assuming only one-tenth of the study and research I had made would have been necessary for an attorney, it would have cost me a minimum of $60,000 and probably closer to $100,000 had I paid counsel to litigate the case for me.)

  My legal study and research has involved the partial or complete reading of some two thousand legal books, journals, reports, texts and the like. Notes taken from these total another half a million carefully organized words. Because I was unable to find texts bearing precisely on what I needed and wanted, I drafted for my own use a two-hundred-page text on habeas corpus and a four-hundred-page text on federal practice and procedure as it relates to state court convictions.

  Opposing me at one time or another, either singly or in groups of from two to six, have been eleven different lawyers for the state. In addition to those, there are several more lawyers working for the state who have had a hand in opposing me but who have not formally appeared as counsel in the courts.

  On several occasions since coming to the Death Row, I have been removed from the prison and personally appeared in the courts to prosecute habeas corpus proceedings in my own behalf. And I have been obliged to write and receive more than two thousand letters of a legal character while conducting the litigation and digging out facts and evidence from every imaginable quarter.

  All this simply in fighting to keep myself alive!

  • 33 •

  Thing Called Judicial Justice

  I’ve fought long and hard against almost impossible odds for survival. Moreover, I’m the first condemned man ever to defend himself at his trial and then handle all subsequent litigation of the case without being represented by counsel. I soon shall have spent more time on Death Row than has any other doomed man in the history of California, and the struggle is still far from over.

  Perhaps this background qualifies me to make some comments I believe are relevant.

  Most people have a tendency to look upon litigation in the appellate courts as an abstruse and suspicious business at best. I was one of those casually inclined toward this view prior to being brought to Death Row. While I didn’t share the notion of some that appellate court judgments emanate from Olympus, much of what went on in such courts seemed to me to be beyond the comprehension of an ordinary mortal like myself. I was willing to believe that because, throughout my pre-Row days, what took place in reviewing courts was a matter of complete indifference to me, just as it is to most others who are not directly touched by this phase of the “administration of justice.” But after more than five years of continuous litigation and personal contact with all things juridical, I can assure the reader there is nothing at heart esoteric, mysterious or Olympian in all that goes on in the temples of justice.

  To be sure, everyone—the judge, the justice, the prosecutor, the policeman, the defendant and appellant’s attorney, the defendant himself, the man and the woman on the street—looks at the law through different eyes. An uncounted number of books, both technical and popular, have been written dealing with the subject which bears the imposing title of “criminal jurisprudence.” Just as with politics, everyone has his own ideas and pet theories in this field. Legislators are forever tinkering with, changing and modifying criminal laws. Experts and non-experts alike are certain they have “the” answers to the perplexing problems that press for an answer here.

  But rarely, if ever, does the public get the opinion of the criminal. Rarely, if ever, is that individual given voice. More often than not, the public assumes the criminal to be neither literate nor articulate. A great many people refuse to believe the criminal capable of thought or entitled to think. Such gratuitous assumptions confound the problem. After all, we must keep in mind the fact that it is the criminal who is causing us all the trouble. (Yet I really should not say “all” the trouble because we, in our zeal, to borrow apt words from an old Chinese proverb, have called in a tiger to get rid of a dog, and we must beware lest in striving to eradicate crime we destroy our heritage of liberty under the law.)

  Not alone for novelty’s sake, then, let us take a careful but human look at post-conviction criminal litigation through the eyes of a man whose life is the stake in the match—myself. Alarmists of one school have set up the hue and cry that there must be something awfully wrong with the law “when a Chessman can flaunt it.” In one breath there is an indignant demand for my neck and for the doing of justice. The short answer to such windy alarums is that I haven’t been flaunting the law and that justice is a relative concept. Just because, in one general sense, justice is defined as meaning “merited reward or punishment,” it does not follow that the punishment ordered by the trial court in my case is merited, no more than it follows that my conviction was legally obtained.

  I began my quest for this thing called judicial justice. At the time I didn’t realize this search would turn out to be an endurance contest that would go on and on.

  You will recall that the case of People v. Chessman had taken a disquietingly unique turn with the death of the elderly court reporter. Resultantly, I found myself wandering about in a hazardous, uncharted legal wilderness, without compass. State law required the state high court to review the entire record of the trial proceedings; it required those proceedings to be prepared by the court reporter who had attended the trial and to be certified by him as correct.

  With the reporter quite beyond the reach of mortal law, that record lay hidden in the old-style Pitman notes of the dead reporter, and literal compliance with the law was thus impossible. However, the trial judge had ordered that, “in the proper administration of justice and to the limit of human beings in their use of human ingenuity,” a record be prepared and had directed the prosecutor to find a reporter who could transcribe the dead reporter’s notes. The first several expert shorthand writers contacted examined the dead reporter’s phonographic symbols and declared they could not be transcribed with any reasonable degree of accuracy. The prosecutor finally found a reporter, Stanley Fraser, who said he believed he could prepare a satisfactory transcription. I heatedly disagreed and sought a writ of prohibition against preparation of such a record from the State Supreme Court, which was denied after attorneys representing the superior court filed written opposition, arguing that a record had to be prepared, and filing affidavits by the prosecutor and the court reporter to the effect that a “good” record could be prepared within a reasonable time. So preparation of the record, by this unique means, went on.

  Meanwhile, and from the time of my arrival on the Row, I began and continued to tug at the coattails of prison officials and the courts until I finally overcame objections to my use of a typewriter on the Row. It took me a year almost to the day to convince then Warden Duffy and his staff that the typewriter would not constitute a threat to custody.

  The typewri
ter was sent to the Row the day my next-door neighbor was executed. Friday, July 1, 1949. At the same time, one of the Row cells, 2437, just inside the bird cage, was designated for use in preparing legal documents by condemned men working on their own cases. (I was the only one.) With the approval of my keepers, I converted this cell into a functional legal office. After numerous changes and refinements, every inch of space has been utilized to best advantage, and the cell is beginning to bulge with books and other legal matter.

  A pressing necessity on arrival, in addition to clerical facilities, was access to law books, codes and rules of the courts. As promptly as I was able, I secured the procedural rules of the various courts and studied these until they were as familiar to me as the back of my hand. Then I arranged to borrow needed legal books from the prison legal library and, if not available locally, from the state library at Sacramento.

  While waiting for the record to be prepared, I began cramming legal knowledge into my head. “The law,” I was counseled, “seeks no unfair advantage over a defendant, but is watchful to see that the proceedings under which his life or liberty is at stake shall be fairly and impartially conducted.” That being the case, I was certain the law wouldn’t object if I made sure the law didn’t relax its concerned vigilance. The appealing defendant’s attorney is expected to give the highest fidelity to his client; I reasoned that the “fool” who represents himself could hardly be expected to show less vigorously alert loyalty to his client.

  Only a preposterous combination of circumstances had made me my own reluctant advocate, but that is the precise point where reluctance ended—when I decided to fight. Psychologists recognize that there is a peculiar kind of person who does his best when the competition is deadliest, and I think there is left no room for doubt diat I belong to the breed.

  Litigation is legal warfare, actually, not hyperbolically. For me, when I was brought to the Row, litigation was a means—seemingly the only means—to an end. That end was survival. And I knew too well what a long, tough, rugged struggle lay ahead if that end were to be reached. I wasn’t thinking at the time that my contact with the law would ennoble me. I was doubdess as frankly suspicious of the judiciary as it was of me. The courts and I were reluctant bedfellows at best, and we kept a wary eye cocked in the other’s direction.

  When diis legal war began, I was candidly interested in only one thing: results. Winning. I wasn’t concerned with acquiring the legal graces. Those who may experience disquietude, fearing I intend to convey the notion that a convicted criminal can make a mockery of the law, should be at ease. My purpose is precisely the opposite. Yet I must approach the subject candidly, one step at a time. Remember that your judicial institutions are operated by human beings, not gods or godlings. Similarly, those who make your laws are mortal, with mortal limitations.

  The law is a science, but we often forget that it is a human science. To believe in its infallibility is to believe in a myth, and to do it a grave disservice. Indeed, it should be remembered that the reason there are reviewing courts is that the law itself recognizes trial courts are capable of erring, of denying legal rights, and so appellate courts are present to prevent injustice. But they do not probe for injustice, they do not search it out; it must be brought to them and proved by the attorney representing the aggrieved litigant or by the litigant himself, and even then before the court can act it must be shown that the court has the “jurisdiction” to do so. Some law must declare that the particular judgment or order sought to be appealed is appealable, or that the original collateral proceeding sought to be instituted is an established and cognizable one. The controversy must be justiciable. And even between the different reviewing courts there is an inevitable difference of opinion as to what is legal and constitutional and what is not. As we all know, the highest court in the land is the Supreme Court of the United States. Mr. Justice Jackson, a brilliant member of that ultimate tribunal, tells us that “We are not final because we are infallible, but we are infallible only because we are final.” His words are worth remembering.

  The ironic thing is that today I think very highly of the law and its processes, but I must emphasize that this good opinion did not come from blindly embracing the numerous juvenile platitudes that obscure the administration of justice. I think fact, reality and rationality are far better servants of justice than those self-professed champions who do their championing with quaint and childish myths regarding the perfect and Olympian characteristics of the adjudicatory process, and who damn as blasphemers those who critically inspect this most cherished of myths. The myth-makers might do well to keep in mind that both our Federal and State Constitutions are a limitation and not a grant of power upon those acting in the name of the sovereign—the people—and that it is not the arms and agencies of government, but the individual himself, who retains certain inalienable rights. No man’s life, liberty or property may be taken by the state “without due process of law,” and unless the state has accorded the individual “equal protection of the law.” Those words from the Fourteenth Amendment to the Federal Constitution have a living, dynamic meaning. While their contours are vague, their core is hard, visible and stable.

  The law tells us that there is a remedy for every wrong. But the mere academic presence of a remedy for a wrong, and convincing a particular court in a particular case that one is entitled to a particular remedy under a particular set of facts are two entirely different matters. In other words, because the general must be applied to the specific, a court can only dispense “substantial” justice, and often only in direct ratio to the skill, enterprise and forensic strength of the prevailing litigant.

  Put bluntly, you do not send an amateur against Joe Louis and expect to win; neither do you win in the courts unless you are competently, skillfully and energetically represented. I knew that when I was brought to the Row. I realized what a prodigious amount of study, planning and concentrated effort effective self-representation entailed.

  So I began to study and I have never stopped. What is the law? Why is the law? Who is the law? I often have spent as many as eighteen hours a day, seven days a week, seeking the answers to those three questions. It didn’t take me a day to learn how little I knew of the law. Odd—one can spend a lifetime in lawlessness and still know practically nothing of law or its disciplines.

  I enrolled myself in legal kindergarten.

  • 34 •

  “Kill Him if You Can.”

  I have concluded the law can never be a machine that infallibly dispenses impartially perfect justice. There is no such thing.

  The law declared that I was entitled to have the entire record of the trial proceedings reviewed by the California Supreme Court for the purpose of determining whether my convictions had been fairly and legally obtained. The law further expressly directed that the record of these proceedings was to be made up by the court reporter who had attended the trial. But that reporter was dead, with the result that literal compliance with the law was impossible. This posed a problem. An easy but hardly legal solution would have been to gas me to death without any appellate review. Wisely, the Constitutions of both California and the United States expressly require that all those similarly situated be accorded equal protection of the laws. And obviously a defendant shouldn’t be penalized because of legal infirmities not of his making.

  To keep the law from finding itself hoist with its own procedural petard, the trial judge had ordered preparation of that record by “human ingenuity.” Months passed. Numerous extensions of time were allowed. Thousands of dollars were spent. Then this uniquely prepared record—called a “Reporter’s Transcript"—was finally filed with the clerk of the trial court. Appellant’s—my—copy was mailed to me. I read this transcript and regarded it as grossly incomplete and inaccurate.

  Yet here I was, locked in a death cell.

  In the directest possible language, I challenged both the validity and adequacy of the transcript in papers which I prepared and filed in the trial court.
Not only did I propose numerous corrections, but I formally asked the trial judge to produce me, as he had said he would and as the prosecutor had sworn he would, and give me the opportunity, by calling hostile and unwilling witnesses, to prove my claims that the transcript was grossly incomplete and inaccurate and that it had been prepared by incompetent and illegal means.

  The trial judge ignored my request. He had the prosecutor go over my list of proposed corrections with the reporter, and then allowed eighty-odd corrections, disallowed more than one hundred forty others and “approved” the transcript, which was then forwarded to the California Supreme Court, along with the personal statements of judge, prosecutor and reporter on how hard each had tried to produce a record.

  Angrily, perhaps even bull-headedly, in mesne or intervening proceedings, as the law calls them, I tore into that record in the state’s high court. I charged extrinsic fraud in its preparation. I claimed the notes of the dead reporter couldn’t be read with reasonable accuracy. I branded as inadequate the transcript before the court. I contended that in its present form it foreclosed me from showing I had been unconstitutionally convicted. I filed exhibits to back up my contentions. I demanded hearings and an opportunity to prove every last one of those contentions. I asked the court to refuse to accept the record. I said it might as well hear an appeal based on a record prepared by a ouija board as the one before it in this case.

  Attorneys for the state filed a lengthy brief discussing their view of the law and urging acceptance of the record. They said it was a good transcript; the court should accept it, without holding hearings.

  In a closing brief, I pressed for hearings more vigorously than ever. If hearings weren’t allowed, how could I prove anything? Obviously I couldn’t. Well, should I lose my life simply because judges had the naked power to refuse to produce me in court?