Watkins v. California Petition for Writ of Certiorari

    In the

(Emtrt df %  Unttrii States
October Term, 1965 

No____________

D oris W atkins, Larry D. Robinson, Janelle H ylton, 
and Clarence L. Proctor,

Petitioners,
— v .—

The Superior Court, Los A ngeles County, California, and 
J. H oward Ziemann, Joseph L. Call, Fred P. Perraga, John 
0 . Barnes, V ernon Spencer, Mark Brandler, Robert Clif­
ton, Bernard Lawler, Joseph A. W apner, Raymond Roberts, 
Bernard S. Selber, Richard S. C. Hayden, Edward C. Olson, 
K athleen Parker, Mario L. Clinco, Joseph Sprankle, Jr., 
and Robert F einerman as Judges

The Municipal Court of Los A ngeles, California, and Maurice 
T. Leader, Irwin J. Nebron and Philip M. Saeta as Judges
The Juvenile Court of Los A ngeles County California, 

and W illiam E. MacSaden as Judge

PETITION FOR W RIT OF CERTIORARI TO THE 
DISTRICT COURT OF APPEALS OF CALIFORNIA, 

SECOND DISTRICT

Jack Greenberg
Leroy D. Clark
Charles Stephen Ralston 

10 Columbus Circle 
New York, New York 10019

Raymond L. Johnson
4840 W. Washington Blvd. 
Los Angeles, California

H erman T. Smith
600 East 103rd Street 
Los Angeles, California

A nthony G-. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania

Attorneys for Petitioners



I N D E X

PAGE

Citations to Decisions Below ....................................... 1

Jurisdiction .........................................................................  2

Question Presented ............................................................ 3

Constitutional and Statutory Provisions Involved .... 4

Statement .............................................................................  4

How the Federal Questions Were Raised and Decided 
B elow .................................................................................  10

Reasons for Granting the Writ ......................................  11

Petitioners Adequately Alleged in Their Petition 
for Writ of Prohibition and Mandamus Facts That 
Establish That Their Continued Prosecutions Vio­
late Their Right to Adequate Representation by
Counsel in Violation of the Fourteenth Amend­
ment to the Constitution of the United States.......  14

A. Under California Law, Petition for Writ 
of Mandamus and Prohibition Is the 
Proper Remedy ............................................  14

B. The Allegations of the Petition for Pro­
hibition and Mandamus Establish a Denial 
of Due Process in Violation of the Four­
teenth Amendment to the Constitution of 
the United States in That Petitioners 
Have Been Denied Adequate Representa­
tion by Counsel....................... ......................  15



11

C. Petitioners Were Denied Due Process of 
Law by the Failure of Respondents to Pro­
vide for Counsel Immediately After Arrest 19

Conclusion  .................................................................................... ....... 21

A ppendices :

A ppendix A —

Proceedings Below ............................................  la

A ppendix B—

California Statutes Involved...............................21a

T able of Cases

Badillo v. Superior Court, 46 Cal. 2d 269, 294 P. 2d 23
(1956)     14

Bogart v. Superior Court of Los Angeles County, 60 
Cal. 2d 436, 34 Cal. Rptr. 850, 386 P. 2d 474 (1963) .... 14 

Brubaker v. Dickson, 310 F. 2d 30 (9th Cir. 1962) .......  18

Coleman v. Alabama, 377 U. S. 129, 133 ....................... 15
Cornell v. Superior Court, 52 Cal. 2d 99, 102-03, 338 

P. 2d 447, 449 (1959) ....................................................  18

De Rocke v. United States, 337 F. 2d 606 (9th Cir. 
1964) .................................................................................  18

Escobedo v. Illinois, 378 U. S. 478 ..................................  19

Funk v. Superior Court, 52 Cal. 2d 423, 340 P. 2d 593 
(1959)

PAGE

15



Gideon v. Wainwright, 372 U. S. 335 .......................16,18,19
Goforth v. United States, 314 F. 2d 868 (10th Cir. 

1963) .................................................................................  18

Hamilton v. Alabama, 368 U. S. 52 ..............................  19
Hammerstein v. Superior Court of California, 341 U. S.

491 ..................................................................................... 2
Harvey v. Mississippi, 340 F. 2d 263 (5th Cir. 1965) .... 16 
Hawk v. Olson, 326 U. S. 271, 278 (1945) ....................... 17

Johnson v. United States, 328 F. 2d 605 (5th Cir. 1964) 17
Jones v. Cunningham, 313 F. 2d 347 (4th Cir. 1963) 17

Konisberg v. State Bar, 353 U. S. 252, 253-258 ........... 11

Lambert v. Municipal Court, 53 Cal. 2d 690, 3 Cal. 
Rptr. 168, 349 P. 2d 984 (1960) ....................................  14

Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 15
Powell v. Alabama, 287 U. S. 45 (1932) ....................... 16
Powell v. Superior Court, 48 Cal. 2d 704, 312 P. 2d 698

(1957) ...............................................................................  15

Rescue Army v. Municipal Court, 28 Cal. 2d 460, 171
P. 2d 8 (1946) .................................................................  14

Rescue Army v. Municipal Court of the City of Los 
Angeles, 331 U. S. 549 .................................................. 2

Townsend v. Bomar, 331 F. 2d 19 (6th Cir. 1964) .......  18
Turner v. Maryland, 318 F. 2d 852 (4th Cir. 1963) .... 18

Vance v. Superior Court, 51 Cal. 2d 92, 330 P. 2d 773
(1958) ...............................................................................  15

I l l

PAGE

Whitney v. Municipal Court, 58 Cal. 2d 907, 27 Cal. 
Rptr. 16, 337 P. 2d 80 (1962) ......................................  14



IV

S tatutes

California Code of Civil Procedure:

PAGE

§§1084, 1085 ..........................................................4,6,24a
§1086 ........................................................................... 4,25a
§1102 ........................................................................4,6,25a
§1103 ........................................................................... 4,25a

California Penal Code:

§858 ..........................................................................4,9,21a
§859 ..........................................................................4,9,21a
§859a ............................................................................4,22a
§987 ............................................................................. 4,23a
§987a ........................................................................4,9,23a

Other  A uthorities

Boone, Prohibition: Use of The Writ of Restraint in
California, 15 Hastings L. J. 161, 162 (1963) ...........  6

Los Angeles: And Now What?, America, Vol. 113, No.
9, Aug. 28, 1965, p. 199 ..................................................  21

Mozer, There’s No Easy Place to Pin the Blame, Life,
Vol. 59, No. 9, Aug. 27, 1965, pp. 31-33....................... 21

No Panacea, The Christian Century, Vol. LXXXII,
No. 34, Aug. 25, 1965, pp. 1027, 1028 ..........................  21

Report of the Joint Committee on Legal Aid of the
Province of Ontario, pp. 101-109 (March, 1965) .....  17

Silverstein, Defense of the Poor in Criminal Cases in 
American State Courts, Vol. II, pp. 60, 75 (The 
American Bar Foundation, 1965) .............................. 9,17



I n  the

i ’lij.in'uu' (Emtrt of tin' Httiteii Stall's
O ctober T eem , 1965 

No......................

D oris W a t k in s , et al.,

Petitioners,

T h e  S uperior Court, L os A ngeles Co u n ty , 
California, et al.

PETITION FOR W RIT OF CERTIORARI TO THE 
DISTRICT COURT OF APPEALS OF CALIFORNIA, 

SECOND DISTRICT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the California District Court of Appeals, 
Second District, entered in the above-entitled case on Octo­
ber 18,1965.

Citation to Decisions Below

The decisions of the California District Court of Appeals, 
Second District, and of the Supreme Court of California 
are not reported and are set forth in Appendix A  infra, 
pp. 15a and 20a.



2

Jurisdiction

The judgment of the California District Court of Ap­
peals, Second District, denying petitioners’ petition for 
mandamus and prohibition without opinion was entered 
on October 18, 1965. Petition for hearing to review the 
decision of the Court of Appeals was filed in the Supreme 
Court of California and was denied without opinion on No­
vember 3,1965.

Jurisdiction of this Court is invoked pursuant to Title 
28 U. S. C. Section 1257(3), petitioners having asserted 
below, and asserting here, deprivation of rights, privileges, 
and immunities secured by the Constitution of the United 
States.

The denial of writs of mandamus and prohibition to re­
strain a lower court proceeding was a final judgment of 
the state court that can be reviewed by writ of certiorari. 
See, Rescue Army v. Municipal Court of The City of Los 
Angeles, 331 U. S. 549.

Since the granting of a petition for hearing to review 
the lower court’s determination is a matter of discretion 
with the Supreme Court of California, certiorari in this 
Court lies to review the decision of the District Court of 
Appeals. See, Hammer stein v. Superior Court of Califor­
nia, 341U. S. 491.



3

Question Presented

Some 4,000 persons, including petitioners, were arrested 
over a nine-day period in Los Angeles County in August, 
1965; the great majority are unable to pay for counsel. Be- 
spondent judges have in almost all instances appointed the 
county public defender whose office consists of 108 attor­
neys, one-half of whom regularly handle criminal cases. 
The 4,000 new cases have in a short time been superimposed 
on a yearly load of 10,000 cases. Different public defenders 
have represented defendants at different stages of the pro­
ceedings ; counsel have been able to consult with clients for 
periods of only five to ten minutes before important pro­
ceedings. Petitioners petitioned the Supreme Court of Cali­
fornia and the District Court of Appeals of California for 
writs of prohibition and mandamus on the grounds that 
they were being denied the right to adequate representa­
tion in violation of the due process and equal protection 
clauses of the Fourteenth Amendment to the Constitution 
of the United States; no responsive pleading has ever been 
filed. The petitions were denied without hearing and with­
out opinion.

On this record, did the California courts err in denying 
writs of mandamus and prohibition that would:

(a) require the trial judges to appoint counsel, who stood 
ready to accept appointment, other than the public de­
fender, or otherwise assure adequate representation of the 
members of petitioners’ class;

(b) require the appointment of counsel as soon after ar­
rest as practicable and before initial arraignment?



4

Constitutional and Statutory Provisions Involved

This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

This case involves also the following statutes of the 
State of California: California Penal Code §§858, 859, 
859a, 987, and 987a; California Code of Civil Procedure 
§§1084-1086, 1102-1103. (The text of these sections is set 
out in full in Appendix B infra.)

Statement

Between August 11 and August 20, 1965, rioting occurred 
in the Watts area of Los Angeles County, California. Ap­
proximately 4,000 persons, including named petitioners, 
were arrested and charged with various felonies, misde­
meanors, and juvenile offenses. Substantially all the per­
sons arrested have had bail set in initial arraignments, 
have had preliminary examinations completed, and have 
been given a date for trial.

The named petitioners are:

(1) Doris Watkins, who was charged with burglary. 
At arraignment she was unrepresented by counsel, and 
bail was set at $4,900, which she was unable to meet. At 
the preliminary hearing the court appointed a member of 
the Los Angeles County Public Defender’s office; he talked 
with her for only a brief period to get information relative 
to a reduction in bail. The court found probable cause for 
holding her for trial, and Mrs. Watkins was released un­
der $250 bail. Later, the petitioner plead not guilty at a 
hearing where she was represented by a different member



5

of the public defender’s office. Subsequently, petitioner had 
a 25-minute interview with another attorney from the pub­
lic defender’s office (R. pp. 13-14; Appendix A, pp. lla-12a).

(2) Larry D. Robinson was charged with disturbing the 
peace. At arraignment, where petitioner was not repre­
sented, he plead not guilty and bail was set at $1,000. Al­
though petitioner informed the court he wished representa­
tion by private counsel, the court urged him to accept the 
public defender. Petitioner is not able to pay private 
counsel (R. p. 16; Appendix A, p. 14a).

(3) Clarence Proctor was charged with burglary. He 
could not meet bail of $4,750 and remained in jail from 
August 14, 1965, until his trial on November 17, 1965. Peti­
tioner was unrepresented at the hearing when bail was set. 
At the preliminary hearing on August 20, 1965, the court 
appointed the public defender. The attorney consulted with 
petitioner for approximately two minutes concerning the 
circumstances of his arrest. Bail was reduced to $2,500, 
which petitioner was also unable to meet. Despite peti­
tioner’s letters to the public defender’s office requesting 
consultation, no one from the office interviewed him until 
October 3, 1965. At that time a member of the office told 
petitioner that he had been very busy; they consulted for 
about five or six minutes (R. pp. 14-16; Appendix A, pp. 
12a-14a).

(4) Janelle Hylton was arrested and charged with 
burglary. At arraignment on August 19, 1965, she was un­
represented by counsel and bail was set at $4,500, which 
petitioner was unable to meet. At the preliminary hearing 
on August 24, the public defender was appointed and he 
interviewed petitioner for approximately five minutes. The



6

court bound her over for trial and she was released on her 
own recognizance. Up to the time of the filing of this suit, 
petitioner had had two other brief interviews with different 
members of the public defender’s office at her two appear­
ances to enter a plea (R. pp. 12-13; App. A, pp. lOa-lla).1

On October 8, 1965, pursuant to Sections 1085ff. and 
1102ff. of the California Code of Civil Procedure, petition­
ers filed on behalf of themselves, and all others arrested 
and charged with crimes arising out of the riots, a petition

1 While the following information was not before the California 
courts and, therefore, not in the record, petitioners bring to the 
Court’s attention the following proceedings, which are a matter 
o f public record, hut occurred subsequent to filing the petition:

Petitioners Watkins and Proctor were tried and convicted of 
trespass after the denial of relief in the California courts, on No­
vember 9 and 17, respectively. Proctor was sentenced to five days’ 
imprisonment; a hearing for probation and sentencing of peti­
tioner Watkins is set for December 3, 1965. Both petitioners were 
represented by the public defender. These proceedings do not, of 
course, moot the individual or representative claims of the peti­
tioners. As to petitioner Watkins, since the trial court has not 
finally disposed of her case under California law a court, by writ 
o f prohibition, may void her conviction in order to afford complete 
relief. See, Boone, Prohibition: Use of The Writ of Restraint in 
California, 15 Hastings L. J. 161, 162 and cases cited therein. At 
the time of filing, the petitioners proceeded as representatives of 
o f a class of untried defendants, many of whom have not yet been 
tried. Unavailability of adequate representation for all 4,000 de­
fendants was the occasion for the filing of this proceeding for 
prerogative w rits: the same unavailability of counsel required pro­
ceeding in representative form ; if the State of California, by its 
unilateral decision to try the individual petitioners can defeat this 
class action, there is no way in which the fundamental constitu­
tional claims of this large class of persons can be protected.

Petitioners Hylton and Robinson were represented by private 
counsel secured by the Los Angeles NAACP chapter subsequent to 
the filing of this action. They were tried on November 10th and 
22nd, 1965, respectively, and both were acquitted.



7

for a writ of prohibition and mandamus in the Supreme 
Court of California (R. pp. 1-19; App. A, pp. la-14a). No 
responsive pleading was filed. The Supreme Court, on its 
own motion, referred the petition to the California District 
Court of Appeals, Second District, for determination. The 
petition claimed that petitioners’ right to adequate repre­
sentation by counsel, guaranteed by the Fourteenth Amend­
ment to the Constitution of the United States, was being 
abridged, and asked the Court to require respondent judges 
to:

(1) Appoint counsel with adequate preparation, in­
vestigation and counseling before conducting any 
further proceedings;

(2) Nullify any prior proceedings in which Petitioners 
or members of their class, after securing adequate 
counsel, can demonstrate they were prejudiced by the 
lack of counsel;

(3) Furnish the members of Petitioners’ class with 
lists of private counsel, if the Public Defender’s Office 
is found to have an inordinate case load, and to pro­
vide compensation for such counsel as are chosen by 
the indigent defendants (R. p. 9; App. A, p. 7a).

Although no responsive pleadings was filed, the district 
court denied the petition without a hearing and without 
opinion on October 18, 1965 (R. p. 20; App. A, p. 15a).

Subsequently, on October 25, 1965, petitioners filed in 
the Supreme Court of California their petition for hearing, 
pursuant to Rule 28 of that court. The petition sought to 
transfer the cause to that court to review the denial of the 
petition for prohibition and mandamus and raised the same



8

federal constitutional claims urged below (App. A, pp. 16a- 
19a). In addition, petitioners moved for a temporary re­
straining order restraining the respondents from conduct­
ing any further criminal trials or juvenile proceedings 
affecting members of petitioners’ class pending disposition 
of the petition for hearing. Again, no responsive pleading 
was filed.

On November 3, 1965, the Supreme Court of California 
denied the petition for hearing summarily, without opinion 
(App. A, p. 20a). Again, petitioners were not given the 
opportunity to present proof of their allegations. Since 
there were neither responsive pleadings filed nor evidence 
taken, the allegations concerning the individual petitioners 
must be taken as true. The following allegations relating 
to the class of 4,000 defendants which the individual peti­
tioners represent are also undenied and similarly must be 
taken as true.

Petitioners are unable to pay for the services of private 
counsel. Of the 4,000 persons arrested and charged with 
various felonies and misdemeanors, virtually all are simi­
larly indigent and unable to pay for counsel of their choice 
(R. pp. 7-8; App. A, pp. 5a-6a). Moreover, at the time of 
the bringing of this action, there were more than 700 de­
fendants still in jail because they could not make bail.

Pursuant to California procedure, the individual respon­
dents are the twenty-three judges conducting the pre-trial 
and trial phases of the prosecutions of petitioners and other 
members of their class, i.e., persons arrested during the 
riots. They are charged under California law to satisfy 
the requirement imposed by the Fourteenth Amendment 
to the United States Constitution that all persons charged



9

with criminal violations, regardless of financial ability, be 
afforded adequate representation by counsel.2 They have 
purported to discharge their duty by appointing the Los 
Angeles County Public Defender’s Office to represent all 
but a few of the indigent defendants who appear without 
counsel (R. pp. 5-6; App. A, p. 4a).

The Los Angeles County Public Defender’s Office con­
sists of approximately 108 lawyers,3 of whom about one- 
half are assigned to handle criminal cases at the pre-trial 
and trial stages. On the average, the case load of the Of­
fice has been 10,000 cases per year. Thus, the Office has 
been charged with defending 4,000 additional cases within 
a brief period of time without the expansion of its legal 
and investigative staff that would be required to deal with 
such an unprecedented load (R. pp. 5-6; App. A, pp. 4a, 
18a).

The prosecutions of the persons arrested have been pro­
ceeding rapidly (R. pp. 7-8; App. A, p. 6a). Since the end 
of August, 1965, virtually all the defendants have been 
arraigned, have had pre-trial hearings, and have had trial 
dates set. Largely because of the lack of adequate legal 
advice immediately after arrest, bail at two or three times

2 Calif. Penal Code, §§858, 859, 987a. See Appendix B, infra.

3 According to the official report of the Public Defender’s Office 
for 1964, there were 66 lawyers in the office. (See Silverstein, De­
fense of the Poor in Criminal Cases in American State Courts, 
Vol. II, p. 60 (American Bar Foundation, 1965).) The figure of 
108 includes, according to information obtained by petitioners’ 
counsel, those hired since the beginning of 1965. Of course, a hear­
ing at which evidence could be developed would present a factually 
correct record.



1 0

the normal amount was set by some of the respondent 
judges in many instances (R. p. 4; App. A, p. 3a).4

As a result of the large additional number of defendants, 
the Public Defender’s Office has been unable to provide 
adequate counsel to those it represents. For many defen­
dants, a different public defender has appeared at each 
stage of the pre-trial proceedings (R. p. 5; App. A, p. 4a). 
In many instances, the various public defenders assigned 
indigents have consulted with defendants only five to ten 
minutes before they were to appear at a preliminary hear­
ing (R. pp. 5, 12, 15; App. A, pp. 4a, 10a, 13a). Although 
many defendants have asked that private counsel be as­
signed and compensated by the court, and such private 
counsel were available for court-appointment through lists 
furnished by bar associations and the Los Angeles Chapter 
of the NAACP, the respondent judges have refused to ap­
point private counsel in sufficient numbers to relieve the 
public defender’s office (R. pp. 6, 16; App. A, pp. 4a-5a, 
14a).

How the Federal Questions Were 
Raised and Decided Below

In their petition for writs of mandamus and prohibition, 
petitioners alleged that unless the relief sought was granted 
they would continue to suffer the denial of their rights 
under the Fourteenth Amendment to the Constitution of 
the United States and the Constitution of California. It

4 In addition, members of the class are being tried daily, with 
the four original petitioners herein having been tried already. On 
the basis of information they have received, counsel for petitioners 
estimates that about two-thirds of those arrested and who have not 
plead guilty have been tried, and all will be tried in the next one 
to two months.



1 1

was claimed that their continued prosecutions under the 
circumstances alleged in their petition would result in the 
effective denial of their right to adequate representation 
by counsel guaranteed by the due process and equal pro­
tection clauses of the Fourteenth Amendment. Also, it was 
alleged that the respondents had no other adequate remedy, 
since a lack of proper legal counsel would render it im­
possible for the petitioners and the members of their class 
to preserve their constitutional claims and to perfect ap­
peals to raise these issues. These same claims were made 
in the petition for hearing filed in the Supreme Court of 
California.

Since, as will be shown below, there exists no adequate 
state ground for the decision of the court below, it must be 
deemed that it rested on a decision on petitioners’ federal 
claims. See, Konigsberg v. State Bar, 353 U. S. 252, 253- 
258.

Reasons for Granting the Writ

This petition, the allegations of which have never been 
denied, presents important questions concerning the obli­
gation of a state to provide adequate counsel for indigent 
defendants. The prosecutions involved herein arose out of 
rioting which broke out in the Watts area of Los Angeles 
and which continued for a number of days last summer. 
The riots—which this petition certainly does not attempt 
to justify—occurred because of the continued injustices that 
the poor believe are inflicted on them by an indifferent, 
affluent society.

In the way it is conducting these prosecutions, the State 
of California is merely perpetuating the same injustices 
which gave rise to the disturbances. It is trying thousands



1 2

of indigents in a rapid, routinized manner which fails to 
ensure that every individual will have at least the protec­
tion of counsel who is able to devote the time required to 
consult with his client fully and to prepare adequately his 
defense. To these defendants justice can appear only as 
an impersonal machine, a mere tool of the same powers in 
society that have put them and kept them in their position 
of poverty.

In this case petitioners are attempting, by a procedure 
clearly appropriate under California law (see infra), to 
correct this situation and gain for all those arrested in 
Watts proper representation by counsel. The present pro­
ceeding is the only way that the rights of the Watts de­
fendants can be adequately vindicated. Day by day, de­
fendants are being held in default of exorbitant bail, are 
being tried without adequate preparation of their cases 
and, perhaps most important, are being forced by all of 
the pressures of their situation, including lack of needed 
legal advice, to plead guilty to the charges against them. 
If relief is not given here, there exists no procedure by 
which the constitutional claims of so large a number of 
defendants can, with any fair assurance, be presented to 
any court for hearing. They must have adequate counsel 
now to advise them concerning their pleas, to ensure that 
all constitutional defenses will be raised and preserved and 
to enable them to perfect appeals.

However, the State of California has conspicuously 
ignored the serious issues raised by this action. Neither 
the respondent judges nor the State have tiled responsive 
papers. Petitioners have been denied in both the District 
Court of Appeals and the Supreme Court of California all 
opportunity for hearing, at which they may offer proof



13

and argue the validity of their constitutional claims. Their 
petitions have been denied summarily without opinion with 
the result that petitioners have not been given a hint of the 
basis for denial.

The very manner in which the State of California has 
thus callously disposed of the present case reinforces the 
denials of federal constitutional rights of the petitioners 
in their criminal prosecutions and makes it imperative that 
this Court accept jurisdiction to affirm the obligation of 
the State for fundamental fairness and civilized procedure 
in all criminal proceedings, regardless of the indigency of 
the defendants or the abhorrence to the community of the 
offenses with which they are charged. Justice consistent 
with due process and equal protection of the law cannot 
be done, nor the confidence in law essential to its mainte­
nance be preserved, by the careless and mechanical proc­
essing, indifferent to fundamental constitutional guaran­
tees, which California has given and is giving these serious 
criminal prosecutions.



14

I.

Petitioners Adequately Alleged in Their Petition for 
Writ of Prohibition and Mandamus Facts That Establish 
That Their Continued Prosecutions Violate Their Right 
to Adequate Representation by Counsel in Violation of 
the Fourteenth Amendment to the Constitution of the 
United States.

A. Under California Law, Petition for Writ of Mandamus 
and Prohibition Is the Proper Remedy.

California law makes clear that the writ of prohibition 
and mandamns was the proper remedy if petitioners’ fed­
eral constitutional claims are sustainable.

In a case closely analogous to this, the Supreme Court 
of California was petitioned for a writ of mandamus, and 
the court issued its writ of prohibition to halt a criminal 
trial until the petitioner had been properly informed of 
his right to counsel. Bogart v. Superior Court of Los An­
geles County, 60 Cal. 2d 436, 34 Cal. Rptr. 850, 386 P. 2d 
474 (1963).

Prohibition has issued to stop a criminal proceeding 
where the defendant was held to answer solely on illegally 
obtained evidence (Badillo v. Superior Court, 46 Cal. 2d 
269, 294 P. 2d 23 (1956)); and where the prosecution was 
being carried out under a statute or ordinance claimed to 
be unconstitutional or otherwise invalid or inoperative 
('Whitney v. Municipal Court, 58 Cal. 2d 907, 27 Cal. Rptr. 
16, 377 P. 2d 80 (1962); Lambert v. Municipal Court, 53 
Cal. 2d 690, 3 Cal. Rptr. 168, 349 P. 2d 984 (1960); Rescue 
Army v. Municipal Court, 28 Cal. 2d 460, 171 P. 2d 8 
(1946).) And similarly pre-trial mandamus has been used 
to review discovery orders of trial courts in criminal cases.



15

Powell v. Superior Court, 48 Cal. 2d 704, 312 P. 2d 698 
(1957); Vance v. Superior Court, 51 Cal. 2d 92, 330 P. 2d 
773 (1958); Funk v. Superior Court, 52 Cal. 2d 423, 340 
P. 2d 593 (1959).

B. The Allegations of the Petitioner for Prohibition and 
Mandamus Establish a Denial of Due Process in Vio­
lation of the Fourteenth Amendment to the Constitu­
tion of the United States in That Petitioners Have 
Been Denied Adequate Representation by Counsel.

Since there were no responsive pleadings filed, no hear­
ing afforded, no opportunity offered to develop facts by 
use of compulsory process, and no findings of fact made 
by either of the state courts below, the facts alleged in the 
petitions filed in the lower courts must be taken as true. 
Therefore, the only issue presented here is whether the 
allegations of petitioners are sufficient to establish a denial 
of petitioners’ right to adequate representation by counsel. 
See, Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 ; 
Coleman v. Alabama, 377 U. S. 129,133.

Briefly summarized, the petition in the California courts 
alleged that petitioners and members of their class were, 
because of their indigency, being forced through the mills 
of justice in rapid order while being denied adequate coun­
sel by the actions of the respondent courts and judges. 
Four thousand indigent persons were arrested in a period 
of nine to ten days (R. pp. 2, 5; App. A, pp. 2a, 4a). They 
were assigned the public defender as counsel, despite the 
fact that this resulted in a 40% increase in that office’s an­
nual case load over a span of two weeks. Numerous defen­
dants requested that private counsel be appointed and com­
pensated by the court (R. pp. 5-6; App. A, pp. 4a-5a). In 
spite of the enormous burden on the public defender, and



16

in spite of there being many private attorneys willing to 
accept appointments if compensated, the judges have re­
fused these requests (Ibid.). The result has been that, typi­
cally, defendants have had only hurried consultations with 
public defenders prior to their proceedings (E. p. 5; App. 
A, p. 4a).

The right to counsel is a requirement of due process of 
law under the Fourteenth Amendment. The right does not 
depend on the defendant’s ability to pay for counsel, and 
where the defendant is indigent the court must furnish an 
attorney in all cases, felonies as well as misdemeanors. 
Gideon v. Wainwright, 372 U. S. 335; Harvey v. Mississippi, 
340 F. 2d 263 (5th Cir. 1965).

In the present case, of course, counsel has been furnished 
in the form of the public defender. However, the right to 
counsel established by the Fourteenth Amendment is the 
right to adequate representation. Powell v. Alabama, 287 
U. S. 45 (1932). The analogy between Powell and the pres­
ent case is extremely close in that there the trial court 
appointed “ all the members of the bar” (287 U. S. at 53) 
to represent the defendants. It was not until the day of 
trial that a particular lawyer was assigned the respon­
sibility of conducting the defense. Thus, there was not 
enough time for counsel to give the attention and prepara­
tion necessary for an adequate defense. In the present case 
as well, it is petitioners’ contention that the counsel could 
not possibly be deemed adequate.

Here, the issue presented by the facts is clear; whether 
50 to 60 attorneys can adequately represent 4,000 defen­
dants in a period of five months through the whole criminal 
pre-trial and trial process, including arraignments, prelimi­
nary hearings, preparation for trials and the trials them­



17

selves while those lawyers have obligations which other­
wise fully occupy them. In a report issued by the American 
Bar Foundation in July, 1965, the Los Angeles public 
defender, “ indicated that though in general he had adequate 
funds to run his office, he could use several additional 
deputies and more administrative personnel.” Silverstein, 
Defense of the Poor in Criminal Cases in American State 
Courts, Vol. II, p. 75 (American Bar Foundation, 1965). 
This statement was made, of course, prior to the riots and 
arrests which led to a 40% increase in the office’s case 
load. The uncontradicted allegations of the petitions are 
that the lawyers in the public defender’s office have not 
been able to spend the time with petitioners and the other 
members of their class that would be necessary to ade­
quately prepare defenses against the serious charges in­
volved.5 6

As this Court has said, “ The defendant needs counsel 
and counsel needs time.” Hawk v. Olson, 326 U. S. 271, 278 
(1945). Many courts have recognized that adequate rep­
resentation is possible only when counsel is able to and 
does, in fact, spend sufficient time consulting with his client, 
investigating the circumstances of the case, and preparing 
for trial. See, e.g., Jones v. Cunningham, 313 F. 2d 347 
(4th Cir. 1963); Johnson v. United States, 328 F. 2d 605

5 Petitioners do not intend any criticism of the Los Angeles Pub­
lic Defender’s Office or of the public defender system in general.
In the normal situation it may be adequate. Under circumstances 
such as obtained here, however, the office is simply not capable, 
because of a shortage in manpower, to handle the situation. For 
a comprehensive report and recommendations on various means of 
providing representation for the poor, including an analysis of 
the relative merits of public defender systems, see Report of the 
Joint Committee on Legal Aid of the Province of Ontario (March, 
1965), generally, and particularly at pp. 101-109.



18

(5th Cir. 1964); Townsend v. Bomar, 331 F. 2d 19 (6th 
Cir. 1964); Brubaker v. Dickson, 310 F. 2d 30 (9th Cir. 
1962); De Rocke v. United States, 337 F. 2d 606 (9th Cir. 
1964); Turner v. Maryland, 318 F. 2d 852 (4th Cir. 1963); 
Goforth v. United States, 314 F. 2d 868 (10th Cir. 1963). 
And in Cornell v. Superior Court, 52 Cal. 2d 99, 102-03, 338 
P. 2d 447, 449 (1959), the California Supreme Court said:

If the attorney is not given a reasonable opportunity 
to ascertain the facts surrounding the charged crime 
so that he can prepare the proper defense, the ac­
cused’s basic right to effective representation would 
be denied.

Thus, this case presents the important issue of not merely 
the right of an indigent defendant to counsel, but the obli­
gation of state courts to ensure that the appointed counsel 
is able to do an adequate job of representation. That is, 
when the circumstances are such that a public defender’s 
office, or other source of free legal aid, cannot provide 
adequate counsel, must the court appoint private attorneys 
with compensation or employ some other means to ensure 
adequate representation? Surely, Gideon requires that the 
substance and not merely the form of representation of 
indigents be assured. Therefore, that case means that 
state court judges must consider the actual circumstances 
surrounding the prosecution of indigents and to consider 
and utilize alternative methods of providing counsel where 
such action is necessary.



19

C. Petitioners Were Denied Due Process of Law by 
the Failure of Respondents to Provide for Counsel 
Immediately After Arrest.

In addition, this case raises the question of the obliga­
tion of state courts to provide indigents with counsel im­
mediately or as soon after arrest as practicable and before 
any proceeding at which their rights might be affected.

The right to counsel is the right to be represented at 
every stage of the proceeding at which the rights of a de­
fendant may be affected. Hamilton v. Alabama, 368 U. S. 
52. Moreover, Escobedo v. Illinois, 378 U. S. 478, estab­
lishes the importance of the right in the period between ar­
rest and arraignment.

Since Gideon v. Wainwright, 372 U. S. 335, establishes 
that the right to counsel cannot depend upon the ability 
of an accused to pay, it follows that an indigent must be 
afforded the same protection as one who has retained his 
own lawyer at all stages of the criminal process. There­
fore, the state had an obligation to provide counsel after 
arrest and prior to the initial arraignment.

The experience of petitioner Proctor provides vivid 
proof of the necessity of such a rule. Proctor was arrested 
on August 14, 1965. He was arraigned four days later on 
August 18th. During the period between arrest and ar­
raignment he saw no attorney and the arresting authori­
ties made no effort to secure him legal aid. At arraignment 
he was unrepresented by counsel; no inquiry was made by 
the judge as to any prior convictions or present employ­
ment. Thus, bail was set at $4,950, which Proctor was un­
able to make. On August 20, 1965, a preliminary hearing 
was held. The public defender was appointed as counsel 
and had only a two-minute consultation with Proctor. Prob­



2 0

able cause to bold bim for trial was found and bail was set 
at $2,500; again, he was unable to make this amount (R. 
pp. 14-16; App. A, pp. 12a-14a).

Proctor remained in jail for three months awaiting trial; 
he wrote many letters to the public defender asking for 
interviews, but was unsuccessful until October 3rd, when 
he had a six-minute interview with a lawyer from that 
office (R. p. 4; App. A, p. 13a). Finally, he was tried on 
November 17, 1965, found guilty of trespass and sentenced 
to five days in the county jail.

The case of this petitioner is not unique; he represents 
the class of more than 700 other persons in jail when this 
action was tiled because they could not make bail. If coun­
sel had been provided for them prior to arraignment, a 
proper amount of bail might have been set. These de­
fendants require adequate counsel now to secure reductions 
in bail and to ensure that their pre-trial constitutional 
rights will not be lost.6

6 The more than 500 juvenile offenders arrested also suffered 
from not having adequate counsel. According to a report issued 
by the Los Angeles County Probation Department in November, 
1965, the Los Angeles County Juvenile Court considered 534 ju ­
venile detention matters in two days. A t least 382 were ordered 
detained with most being released before or at the disposition hear­
ings held during the week of September 13, 1965. As of October 
25, 1965, there were some juveniles still being held. The report 
does not indicate whether any juveniles were released on hail or 
were provided legal counsel. Biot Participant Study: Juvenile 
Offenders, Research Report No. 26, Los Angeles County Probation 
Department, November 1965, p. 31.



2 1

CONCLUSION

This action presents more than the question of the rights 
of the individual petitioners, important as those rights may 
be. It presents a crucial element of the relation between 
the state and those who because of poverty and neglect 
have been excluded from society, who have despaired of 
proceeding through lawful process, but who have now be­
come caught up in the machinery of the law, the enforcer 
of the standards of that society. One commentator said, 
after the riots in Watts had ended:

Politicians, psychologists, educators, civil rights lead­
ers and hosts of others joined the sociologists in 
pondering the causes. They nearly all came up with 
the same answer: the frustration and utter hopeless­
ness of the ghetto-locked Negro. Mozer, “ There’s No 
Easy Place to Pin the Blame,” Life, vol. 59, No. 9, Aug. 
27,1965, pp. 31-33.7

The question here is whether a clearly established legal 
right will be applied in the only way it can be meaningful, 
or whether California and its courts will continue to sweep 
this issue under the rug.

7 For other comments on the causes of the Watts riots, see, e.g., 
“No Panacea,” The Christian Century, Vol. L X X X II , No. 34, Aug. 
25,1965, pp. 1027, 1028; “Los Angeles: And Now W hat?” , America, 
Vol. 113, No. 9, Aug. 28,1965, p. 199.



2 2

W herefore, for the foregoing reasons, petitioners pray 
that the writ of certiorari be granted.

Respectfully submitted,

Jack Greenberg

L eroy D. Clark

Charles S tephen R alston 
10 Columbus Circle 
New York, New York 10019

R aymond C. Johnson

4840 W. Washington Blvd.
Los Angeles, California

H erman R. S m ith

600 East 103rd Street 
Los Angeles, California

A nthony  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania

Attorneys for Petitioner



A P P E N D I C E S



APPENDIX A

I n  the

SUPREME COURT OF CALIFORNIA

No..............

D oris W atkins, L arry D. R obinson, Janelle H ylton , and
Clarence L. P roctor,

Petitioners,
—vs.—

T he Superior Court, L os A ngeles County, California, 
and J. Howard Ziemann, Joseph L. Call, Fred P. Per- 
raga, John G-. Barnes, Vernon Spencer, Mark Brandler, 
Robert Clifton, Bernard Lawler, Joseph A. Wapner, 
Raymond Roberts, Bernard S. Selber, Richard S. C. 
Hayden, Edward C. Olson, Kathleen Parker, Mario L. 
Clinco, Joseph Sprankle, Jr., and Robert Feinerman as 
Judges,

T he M unicipal Court of L os A ngeles, California, and 
Maurice T. Leader, Irwin J. Nebron and Philip M. Saeta 
as Judges

T he  Juvenile Court of L os A ngeles County, California, 
and William E. MacSaden as Judge.

Petition for Writ of Prohibition and Mandamus

To: The above-named Respondents as Judges of the 
Superior Court of Los Angeles County, California, and 
the Municipal Court of the City of Los Angeles, California 
and Juvenile Court, Los Angeles County, California. Now



2a

come the Petitioners named herein and petition this Hon­
orable Court for the issuance of a Writ of Prohibition and 
Mandamus directed to the Respondents for the causes and 
on the grounds named herein as follows:

1. Petitioners Doris Watkins, Larry D. Robinson, Jan- 
elle Hylton, and Clarence L. Proctor, are all Negro cit­
izens of Los Angeles County, California, who were arrested 
and charged with crimes for participation in rioting oc­
curring in Los Angeles County, California, between August 
11 and August 20, 1965. Petitioners have had bail set in 
their initial arraignment, have completed their preliminary 
hearings, and have been given a date for trial. Petitioner 
Clarence L. Proctor is presently in custody in the Hall of 
Justice in Los Angeles, California. All other Petitioners 
are released on bail or on their own recognizance. Peti­
tioners are indigent and unable to pay for the services of 
private counsel.

2. The Respondents are J. Howard Ziemann, Joseph 
L. Call, Fred P. Perraga, John Gr. Barnes, Vernon Spencer, 
Mark Brandler, Robert Clifton, Bernard Lawler, Joseph 
A. Wapner, Raymond Roberts, Bernard S. Selber, Richard 
S. Hayden, Edward C. Olson, Kathleen Parker, Mario L. 
Clinco, Joseph Spankle, Jr. and Robert Feinerman, Judges 
of the Superior Court, Los Angeles County, California; 
Maurice T. Leader, Irwin J. Nebron and Philip M. Saeta, 
Judges of the Municipal Court of the City of Los Angeles, 
California and William E. MacSaden, Judge of the Ju­
venile Court, Los Angeles County, California. Respon­
dents Ziemann, Call, Perraga, Barnes, Spencer, Brandler, 
Clifton, Lawler, Wapner, Roberts, Selber, Hayden, Olson, 
Parker, Clinco, Spankle, and Feinerman are vested with



3a

jurisdiction to conduct preliminary hearings, arraignment 
for pleas and trials of petitioners and other defendants 
charged with felony violations. Respondents Leader, 
Nebron, and Saeta have the authority to inform Petitioners 
and other defendants appearing in the Municipal Court of 
the charges placed against them, to set bail pending a 
preliminary hearing and to preside at the trials of de­
fendants charged with misdemeanors. Respondent Mac- 
Saden conducts proceedings in the Juvenile Court for mi­
nors charged with misdemeanors and felonies. All of the 
said Respondents have the authority and duty to inform 
defendants of their right to counsel and to secure imme­
diate appointment of counsel to indigent defendants who 
are financially unable to secure representation.

3. Respondents have failed to secure adequate legal rep­
resentation for the indigent Petitioners in the following 
particulars:

(a) Respondent Judges of the Municipal Court 
failed to appoint private counsel or a public defender 
to represent Petitioners at the initial arraignment, 
and made no inquiry as to Petitioners’ financial ability 
to retain counsel for this proceeding. Petitioners were 
given no time to secure counsel for said arraignments 
and were prejudiced thereby when Respondents set 
bail in the Municipal Court at two to three times the 
amount ordinarily set for defendants with like charges. 
Bail was set at excessive and discriminatory levels to 
insure Petitioners continued incarceration, thereby 
assuming the guilt of all Petitioners, prior to proof 
of the charges against them. The Petitioners, being 
without Counsel in said arraignments, were unable to



4a

challenge the violations of their constitutional and 
statutory rights.

The facts of this allegation are supported by affida­
vits of Petitioners Watkins, Hylton, and Proctor, at­
tached hereto.

(b) All of the said Respondents have failed and 
refused to appoint private counsel not associated with 
the Public Defender’s office although the legal and in­
vestigative staff of the Public Defender’s office has not 
been expanded sufficiently to give adequate time for 
preparation and investigation to defend Petitioners. 
Petitioners have had necessarily brief and cursory 
consultation with the public defenders in the pre-trial 
proceedings. (See affidavits of Petitioners Watkins, 
Hylton, and Proctor.) Neither of the Petitioners have 
been continuously represented by one public defender 
through the successive proceedings, resulting in each 
public defender having to freshly acquaint himself with 
the case when he receives it. (See affidavit of Peti­
tioners Watkins, Hylton, and Proctor.) The Public 
Defender has never been required to handle the cases 
of over 4,000 defendants with multiple charges during 
a six-week period, such as occurred after the riots 
began. In September, 1965 the County Public Defen­
der’s Office disbanded and the authority of the County 
office was expanded to include misdemeanors as well 
as felonies. The County office absorbed the bulk of the 
City Staff, but the consolidation has not affected the 
total legal staff available to service the caseload. Pri­
vate Counsel, associated with groups such as the Na­
tional Association for the Advancement of Colored 
People, the American Civil Liberties Union, and the



5a

United Civil Rights Committee have represented indi­
gent persons without compensation. They have re­
ceived more requests for representation from persons 
presently by the Public Defender’s Office. (See affida­
vit of Petitioner Proctor.)

The above-named groups and the Los Angeles County 
Bar Association have furnished the Respondents with lists 
of attorneys who are willing to accept court appointment 
to represent indigent persons arrested in the riots. The 
Respondents have failed to make appointments of private 
counsel from these lists in sufficient numbers to relieve the 
overextended caseload of the Public Defender’s Office, and 
have limited the appointment of private counsel to in­
stances where there would be a conflict of interest for the 
Public Defender to represent the defendant. (See affidavit 
of Petitioner Robinson.)

4. Petitioners bring this suit as a class action on their 
behalf and on behalf of all other Negro persons in Los 
Angeles County arrested since August 11, 1965 for par­
ticipation in rioting, who are similarly affected by the 
denial of adequate legal counsel. Petitioners allege on in­
formation and belief that over 4,000 persons have been 
charged with misdemeanors and felonies in circumstances 
similar to their own. The members of the class are so 
numerous as to make it impracticable to bring them all 
individually before this Court; there being common ques­
tions of law and fact involved, and common grievances 
arising out of common wrongs, and common relief is sought. 
The Petitioners fairly and adequately represent the inter­
est of their class.



6a

5. The Respondents lack jurisdiction to continue crimi­
nal or juvenile proceedings where indigent persons are 
denied legal counsel.

6. The members of Petitioners’ class have no plain, ade­
quate, and speedy remedy by appeal or in any other man­
ner to secure adequate representation by counsel prior to 
trial. Public defenders representing indigent persons in 
Petitioners’ class have not raised the objection that these 
parties are being denied counsel, and therefore criminal 
trials and juvenile proceedings are being conducted in which 
the deprivation of constitutional and statutory rights will 
not be raised. The members of the Petitioners’ class are 
threatened with irreparable injury in that they face prose­
cution with the defense of private counsel who are uncom­
pensated and without funds to make investigation, or are 
represented by the Public Defender’s Office which is over­
extended. Unless this Court restrains the Respondents and 
orders the protection prayed for herein, Petitioners and 
members of the class will be tried in proceedings totally 
in violation of their constitutional and statutory rights, 
and deprived of equal protection of the laws in violation 
of the Fourteenth Amendment.

7. Petitioners file their application for Writ of Prohibi­
tion and Mandamus in this Court in the first instance be­
cause three of the Petitioners are to be tried in October, 
1965, with Petitioner Robinson’s trial to begin October 15, 
1965. Petitioners allege on information and belief that the 
trials of other members of the class are in progress or 
will be conducted during the second week of October, 1965. 
Petitioners’ application for Writ of Prohibition and Man­
damus is of grave public importance, as it raises funda­



7a

mental questions of the constitutionality and authority of 
the Respondents to proceed with criminal prosecutions of 
over 4,000 defendants.

W herefore, your Petitioners pray that an alternative 
Writ of Prohibition and Mandamus issue out of and under 
the seal of this Honorable Court directed to the Respon­
dents above named commanding them to :

1) Appoint counsel with adequate preparation, in­
vestigation and counseling before conducting any fur­
ther proceedings;

2) Nullify any prior proceedings in which Peti­
tioners or members of their class, after securing ade­
quate counsel, can demonstrate they were prejudiced 
by the lack of counsel;

3) Furnish the members of Petitioners’ class with 
lists of private counsel, if the Public Defender’s Office 
is found to have an inordinate caseload, and to provide 
compensation for such counsel as are chosen by the 
indigent defendants.

In the alternative Petitioners pray that the Respondents 
be made to show cause before this Court, at a time and place 
to be fixed, why they should not be restrained and enjoined 
from taking any further proceedings in the causes men­
tioned herein, and for such other, further and additional 
relief as to the Court may seem just and proper in the 
premises.



8a

State of California,
County of L os A ngeles, s s . :

Doris Watkins, Janelle Hylton, Larry D. Robinson, and 
Clarence L. Proctor, being duly sworn, say: that they are 
the Petitioners in the above-entitled action; that they have 
read the foregoing petition for Writ of Prohibition and 
Mandamus, and know the contents thereof; that the facts 
alleged in the writs are true of their own knowledge, and all 
other matters stated in the writs are alleged on information 
or belief, and as to those matters they believe them to be 
true.

L arky D ike R obinson

Petitioner

M bs. Janelle H ylton

Petitioner

M bs. D orris W atkins

Petitioner

Subscribed and sworn to before me this 
6th day of October, 1965.

S id E. Campbell 
Notary Public
My Commission Expires May 26,1967



9a

Clarence P roctor

Petitioner

Subscribed and sworn to before me this 
7th day of October, 1965.

R obert A. W ard, Jr.
Notary Public
My Commission Expires July 11,1967

R aymond L. J ohnson

4840 W. Washington Blvd. 
Los Angeles, California

H erman T. Sm ith

600 E. 103rd Street 
Los Angeles, California

Jack Greenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York

Attorneys for Petitioners



10a

Affidavits

S tate of California,
County of L os A ngeles, s s . :

I, Janelle Hylton, being duly sworn, deposes and says:

1. I am a Petitioner in the attached application for Writ 
of Prohibition and Mandamus and make these statements 
in support thereof.

2. I was arrested on Saturday, August 14, 1965 and was 
arraigned on Thursday, August 19, 1965. I was not repre­
sented by counsel at this arraignment and I was informed 
that I was charged with burglary, and my bail set at 
$4500. I was unable to meet the bail of $4500 and remained 
in jail until my preliminary hearing.

3. I appeared in court on Tuesday, August 24, 1965 for 
a preliminary hearing. Between my arraignment on Thurs­
day, August 19, 1965, and until I arrived in court on Tues­
day, August 24, 1965,1 had not been interviewed by anyone 
from the Public Defender’s office. At the preliminary hear­
ing on Tuesday, August 24,1965 the court appointed a pub­
lic defender, and he interviewed me concerning my case 
for approximately five minutes. The court found probable 
cause for binding me over for trial, and I was released on 
my own recognizance.

4. On Wednesday, September 8, 1965, I reappeared in 
court to give my plea. The court assigned a public defender 
to me who talked with me about ten minutes concerning my 
financial status and the circumstances of my arrest. This



11a

public defender was not the public defender who appeared 
with me at the preliminary hearing.

5. On Thursday, September 16, 1965 I reappeared in 
court and entered a plea of not guilty. The public defender 
who represented me on this date had not appeared with me 
at the preliminary hearing, nor was this the public de­
fender whom I had talked with on Wednesday, September 
8,1965.

6. I received a letter from the Public Defender’s office 
stating that Mrs. Florence Mills was assigned to defend 
me, and I called and have secheduled an appointment for 
Friday, October 8, 1965. During the entire period after 
my arrest and release on my own recognizance, no investi­
gator from the Public Defender’s office has called me or 
visited my home to make an investigation of the facts.

7. My trial is secheduled for November 10, 1965.

I, D oris W atkins, being duly sworn, deposes and says:

1. I am a Petitioner in the attached application for Writ 
of Prohibition and Mandamus and make these statements 
in support thereof.

2. I was arrested on Saturday, August 14,1965 and taken 
for arraignment on Tuesday, August 17, 1965. I was in­
formed I was charged with burglary and my bail was set 
at $4900. I was unable to meet bail. No attorney repre­
sented me at this proceeding.

3. I appeared in court on Friday, August 21,1965 for the 
preliminary hearing. The court appointed a public de­



12a

fender. He informed me that he didn’t know anything 
about my case and didn’t have time to talk to me about it. 
He said that he only wanted information in order to secure 
a reduction in my bail. He inquired only as to my name, my 
address, number of my children, and if I had any prior 
convictions. The court found probable cause for holding 
me for trial and bail was reduced to $250. I secured my 
release under this bail.

4. I reappeared in court on Monday, September 13, 1965, 
and entered a plea of not guilty. The public defender who 
appeared on my behalf had not represented me in any 
prior hearing.

5. A  trial date was set for Monday, October 25,1965.

6. I received a letter from the Public Defender’s office 
and arranged an interview with a public defender on 
Wednesday, September 29, 1965. We talked for approxi­
mately 25 minutes concerning the circumstances of my 
arrest.

7. At no time after my arrest or to date has an investi­
gator for the Public Defender’s office interviewed me or 
inquired of me as to the facts of the charges against me.

I, Clarence L. P roctor, being duly sworn, deposes and 
sa y s:

1. I am a Petitioner in the attached application for Writ 
of Prohibition and Mandamus and make these statements 
in support thereof.

2. I was arrested on Saturday, August 14, 1965 and ar­
raigned on August 18, 1965. At the arraignment I was



13a

informed that I was charged with burglary and bail was 
set at $4950. I was unrepresented by counsel at this pro­
ceeding and no inquiry was made as to my length of resi­
dence in the county, prior convictions, or present employ­
ment. I was unable to pay the bail for release.

3. I reappeared in court on Friday, August 20, 1965 
for a preliminary hearing. The court, at the start of this 
proceeding, appointed a public defender to represent me. 
I had had no interview with the public defender or with 
any investigator from the Public Defender’s office prior to 
the start of this proceeding. The public defender consulted 
with me approximately two minutes concerning the cir­
cumstances of my arrest. The court found probable cause 
to hold me for trial. Bail was reduced to $2500. I was un­
able to meet the reduced bail and presently continue in 
custody.

4. On Friday, September 3, 1965 a man from the Public 
Defender’s office who was not a public defender, gave me 
forms to fill out to secure my release on my own recogni­
zance.

6. My trial is set for October 29, 1965. After the pre­
liminary hearing on Friday, August 20, 1965 until Sunday, 
October 3, 1965, no one from the Public Defender’s office 
interviewed me, although I wrote letters to the Public De­
fender’s office requesting consultation to prepare my de­
fense. When the public defender did visit me on October 
3, 1965 he informed me that he had been very busy and 
was therefore unable to consult with me earlier. We talked 
for approximately five or six minutes. During the period



14a

prior to October 3, 1965, when I saw no one from the Pub­
lic Defender’s office, I wrote to the N.A.A.C.P. requesting 
legal assistance.

7. No investigator from the Public Defender’s office has 
visited me to secure facts concerning the charges against 
me.

I, L arky D. R obinson, being duly sworn, deposes and 
says:

1. I am a Petitioner in the attached application for Writ 
of Prohibition and Mandamus and make these statements 
in support thereof.

2. I was arrested on Thursday, August 12, 1965 and was 
bailed out Friday, August 13,1965, bail being set at $250.

3. I was arraigned on Wednesday, August 18, 1965 and 
was informed that I was charged with the misdemeanor of 
disturbing the peace. I pleaded not guilty and bail was 
set at $1000. I was unrepresented in this proceeding.

4. On Saturday, August 21, 1965 I was bailed out again. 
I reappeared in court on September 7, 1965 for a prelimi­
nary hearing. I informed the court I wanted to seek coun­
sel at the N.A.A.C.P. The Judge urged me, even after 
I made known my desire to seek representation by the 
N.A.A.C.P., to accept the representation of the Public 
Defender’s office. I refused the appointment of the public 
defender.

5. I have made contact with private counsel of the 
N.A.A.C.P. and desire their representation. I am not able 
to pay private counsel.

6. My trial is scheduled for October 15, 1965.



15a

I n  the

DISTRICT COURT OF APPEAL OF 
THE STATE OF CALIFORNIA

Second A ppellate D istrict D ivision T wo 
Minutes of Division Two

October 18, 1965

Civil No. 29877

.. ■— ..................................................... - -  — —   ------------------ —

W atkins, et al.

— vs.—

S uperior Court of L os A ngeles County

The Court: Petition for writ of prohibition and mandate 
denied.



16a

I n  the

SUPREME COURT OF CALIFORNIA

[Names of parties omitted]

Petition for Hearing

Comes now the petitioners named herein and petition 
this Honorable Court to grant a hearing for review of the 
denial by the District Court of Appeals, Second District, 
of petitioners’ writ of prohibition and mandamus. As 
grounds for such relief, petitioners state the following:

1. Petitioners’ writ of prohibition and mandamus, filed 
in this court on October 8, 1965, was transferred to the 
District Court of Appeals, Second District, on October 11, 
1965.

2. The District Court of Appeals on October 18, 1965 
denied the petition for writ of prohibition and mandamus, 
without opinion. A  copy of the order of the court is at­
tached hereto.

3. The petitioners are four indigent Negro persons 
charged with crimes for participating in riots occurring 
in Los Angeles County, California between August 11 and 
20, 1965. The writ of prohibition and mandamus was di­
rected to the Municipal Court of the City of Los Angeles, 
California, the Superior Court and the Juvenile Court of 
Los Angeles County, which courts have the responsibility



17a

of conducting adult and juvenile proceedings on charges 
against all persons arrested in the riots.

4. Petitioners tiled the Writ of Prohibition and Man­
damus as a class action on behalf of themselves and all 
other Negro persons arrested in the riots who are being 
tried before the respondents. The Petition alleged the fol­
lowing facts, which facts are more particularized in a copy 
of the Writ of Prohibition attached hereto:

a. Petitioners and other indigent defendants were 
subjected to excessive and discriminatory bail at their 
initial arraignment and were unrepresented during or 
prior to this proceeding.

b. Respondents have sought to have the Public De­
fender’s Office carry the burden of representing the 
bulk of over 4,000 defendants with multiple charges 
in pre-trial and trial proceedings in which the Public 
Defender’s Office had not had sufficient time or per­
sonnel to prepare, consult with the defendant or in­
vestigate the charges to conduct an adequate defense. 
Private associations such as the N.A.A.C.P. have un­
dertaken a portion of the representation of indigent 
defendants without compensation and have received 
no funds to conduct adequate investigations. These 
private associations and the Los Angeles County Bar 
Association have furnished the respondents with lists 
of attorneys willing to accept court appointments to 
represent the members of petitioners’ class, but 
respondents failed to make use of this source of rep­
resentation in sufficient numbers to relieve the over­
extended case load of the Public Defender’s Office.



18a

c. Minors have been tried in Juvenile Court without 
adequate counsel from the Public Defender’s Office, 
or without representation by any attorney.

5. The Petition for Writ of Prohibition and Mandamus 
asserts that the respondents have failed to secure adequate 
legal representation for petitioners and other indigent de­
fendants in violation of the equal protection and due process 
clauses of the Fourteenth Amendment to the United States 
Constitution, Article I, Section 2 of the California Consti­
tution and state statutes governing appointment of counsel. 
In particular, respondents have violated petitioners’ rights 
in the following manner:

a. The Juvenile Court has failed to appoint counsel 
for every indigent juvenile who is charged with the 
commission of a misdemeanor or felony.

b. The Municipal Court, and judges from the Su­
perior Court sitting as Municipal judges, failed to 
secure indigent persons counsel prior to the arraign­
ment held immediately after their arrest.

c. Petitioners and members of their class have not 
been accorded a right to counsel equal to that ac­
corded to indigent defendants arrested and tried prior 
to the riots of August 11, 1965.

d. Appointment of the public defender was inade­
quate as there was insufficient time for consultation 
and investigation to conduct a proper defense.

e. Respondents failed to appoint private counsel 
although the Public Defender’s Office was not staffed 
to service the inordinate number of criminal cases 
arising over a two to three-week period.



19a

f. Respondents failed to accord indigent defendants 
court-appointed counsel of their own choosing where 
such defendants did not wish to be represented by the 
public defender.

6. Writ of Mandamus will lie since respondents have 
failed to perform the duty enjoined upon them by law to 
appoint adequate counsel to petitioners and other indigent 
defendants. Writ of prohibition will lie since respondents 
lack jurisdiction to conduct juvenile or criminal proceed­
ings without acquiring adequate legal representation for 
persons unable to afford private counsel.

7. Petitioners request a hearing to settle serious ques­
tions of law concerning the nature and scope of the rights 
of over 4,000 indigent defendants to adequate legal rep­
resentation.

Respectfully submitted,

R aymond L. J ohnson

4840 West Washington Blvd. 
Los Angeles, California

H erman T. S m ith

600 East 103rd Street 
Los Angeles, California

Jack Greenberg 
L eroy D. Clark 
Charles S tephen R alston 

10 Columbus Circle 
New York, New York

Attorneys for Petitioners



20a

Order Due 
November 17, 1965

Order Denying Hearing

A fter Judgment by D istrict Court op A ppeal

2nd District, Division 2, Civil No. 29877

In  the

SUPREME COURT 
OP THE STATE OF CALIFORNIA 

IN BANK

W atkins

Superior Court of the County of L os A ngeles

for hearing D enied.

F iled N ov 3—1965

petition

T raynor, Chief Justice



21a

APPENDIX B

California Statutes Involved

Calif. Penal Code §858:

Informing Accused of Nature of Charge and Right to 
Counsel.—When the defendant is brought before the 
magistrate upon an arrest, either with or without war­
rant, on a charge of having committed a public offense, 
the magistrate must immediately inform him of the 
charge against him, and of his right to the aid of 
counsel in every stage of the proceedings. If it ap­
pears that the defendant may be a minor, the magis­
trate shall ascertain whether such is the case, and if 
the magistrate concludes that it is probable that the 
defendant is a minor, . . .  he shall immediately either 
notify the parent or guardian of the minor, by telephone 
or messenger, of the arrest, or appoint counsel to rep­
resent the minor.

Calif. Penal Code §859:

Time to Procure Counsel.—When the defendant is 
charged with the commission of a public offense, over 
which the superior court has original jurisdiction, by 
a written complaint subscribed under oath and on file 
in a court within the county in which the public offense 
is triable, he shall, without unnecessary delay, be taken 
before a magistrate of the court in which such com­
plaint is on file. The magistrate shall immediately 
deliver to him a copy of the complaint, inform him of 
his right to the aid of counsel, ask him if he desires the



22a

aid of counsel, and allow him a reasonable time to send 
for counsel; and the magistrate must, upon the request 
of the defendant, require a peace officer to take a mes­
sage to any counsel whom the defendant may name, in 
the judicial district in which the court is situated. The 
officer must, without delay and without fee, perform 
that duty. If the defendant desires and is unable to 
employ counsel, the court must assign counsel to defend 
him. If it appears that the defendant may be a minor, 
the magistrate shall ascertain whether such is the case, 
and if the magistrate concludes that it is probable that 
the defendant is a minor, he shall immediately either 
notify the parent or guardian of the minor, by tele­
phone or messenger, of the arrest, or appoint counsel 
to represent the minor.

Calif. Penal Code §859a:

Felony Plea Before Magistrate. If the public offense 
charged is a felony not punishable with death, the 
magistrate shall immediately upon the appearance of 
counsel for the defendant read the complaint to the 
defendant and ask him whether he pleads guilty or 
not guilty to the offense charged therein and to a pre­
vious conviction or convictions of crime if charged; 
thereupon, or at any time thereafter, while the charge 
remains pending before the magistrate and when his 
counsel is present, the defendant may, with the consent 
of the magistrate, and the district attorney or other 
counsel for the people, plead guilty to the offense 
charged or to any other offense the commission of 
which is necessarily included in that with which he is 
charged, or to an attempt to commit the offense charged



23a

and to the previous conviction or convictions of crime 
if charged; and upon such plea of guilty, the magistrate 
may then fix a reasonable bail as provided by this code, 
and upon failure to deposit such bail or surety, shall 
immediately commit the defendant to the sheriff and 
certify the case, including a copy of all proceedings 
therein and such testimony as in his discretion he may 
require to be taken, to the superior court, and there­
upon such proceedings shall be had as if such defendant 
had pleaded guilty in such court. The foregoing pro­
visions of this section shall not be construed to au­
thorize the receiving of a plea of guilty from any 
defendant not represented by counsel. . . .

Calif. Penal Code §987:

Defendant, on Arraignment to Be Informed of His 
Right to Counsel, When Court to Assign Counsel. If 
the defendant appears for arraignment without counsel, 
he must be informed by the court that it is his right 
to have counsel before being arraigned, and must be 
asked if he desires the aid of counsel. If he desires 
and is unable to employ counsel, the court must assign 
counsel to defend him.

Calif. Penal Code §987a:

Compensation of Counsel by County. In any case in 
which counsel is assigned in the superior court to 
defend a person, including a person who is a minor, 
who is charged therein with the commission of a crime, 
or is assigned in a municipal or justice’s court, or 
justice court as established pursuant to the Municipal 
and Justice Court Act of 1949, to represent such a



24a

person on a preliminary examination in snch a court 
and who desires but who is unable to employ counsel, 
such counsel, in a county, or city and county, in which 
there is no public defender, or in a case in which the 
court finds that because of conflict of interest or other 
reasons the public defender has properly refused to 
represent the person accused, shall receive a reason­
able sum for compensation and for necessary expenses, 
the amount of which shall be determined by the court 
in accordance with this section, to be paid out of the 
general fund of the county.

M . JA.W  TV" TV* TV*

Counsel shall be appointed to represent, in the mu­
nicipal or justice court, a person who desires but is 
unable to employ counsel, when it appears that such 
appointment is necessary to provide an adequate and 
effective defense for defendant.

California Code of Civil Procedure §1084:

Defined.— The writ of mandamus may be denominated 
the writ of mandate.

California Code of Civil Procedure §1085:

Power to Issue—Municipal Court.—It may be issued 
by any court, except a municipal or justice court, to 
any inferior tribunal, corporation, board, or person, 
to compel the performance of an act which the law 
specially enjoins, as a duty resulting from an office, 
trust, or station; or to compel the admission of a party 
to the use and enjoyment of a right or office to which 
he is entitled, and from which he is unlawfully pre­
cluded by such inferior tribunal, corporation, board, or 
person.



25a

California Code of Civil Procedure §1086:

Duty to Issue Mandatory.— The writ must be issued in 
all cases where there is not a plain, speedy, and ade­
quate remedy, in the ordinary course of law. It must 
be issued upon the verified petition of the party bene­
ficially interested.

California Code of Civil Procedure §1102:

Nature and Effect of Writ.— The writ of prohibition is 
the counterpart of the writ of mandate. The writ of 
prohibition arrests the proceedings of any tribunal, 
corporation, board, or person exercising judicial func­
tions, when such proceedings are without or in excess 
of the jurisdiction of such tribunal, corporation, board 
or person.

California Code of Civil Procedure §1103:

Power to Issue—Municipal Court.—It may be issued 
by any court, except municipal or justice courts, to an 
inferior tribunal or to a corporation, board, or person, 
in all cases where there is not a plain, speedy, and 
adequate remedy in the ordinary course of law. It is 
issued upon the verified petition of the person bene­
ficially interested.