Upon an indictment for conspiracy to violate the Espionage Act
of 1917, the penalty for which may be death or imprisonment for as
long as 30 years, petitioner signed a paper purporting to waive her
right to counsel, and pleaded guilty. She was sentenced to
imprisonment for four years. In a subsequent habeas corpus
proceeding challenging the validity of the sentence, she alleged
(1) that the plea was entered because of coercion, intimidation,
and deception by federal officers in violation of the due process
clause of the Fifth Amendment, and (2) that she neither
understandingly waived the benefit of the advice of counsel nor was
provided with the assistance of counsel as required by the Sixth
Amendment. The District Court heard the conflicting evidence
offered by petitioner and the Government, found that petitioner had
failed to prove either contention, and dismissed the writ. The
Circuit Court of Appeals affirmed.
Held:
The judgment of the Circuit Court of Appeals is reversed, and
that of the District Court is set aside. The cause is remanded to
the District Court so that it may hold further hearings and give
consideration to, and make explicit findings upon, the question
whether the petitioner pleaded guilty in reliance upon the
erroneous legal advice of a Government agent. If upon such further
hearings and consideration, the District Court finds that the
petitioner did not competently, intelligently, and with full
understanding of the implications waive her constitutional right to
counsel, an order should be entered directing that she be released
from further custody under the judgment based on her plea. Pp.
332 U. S.
709-710,
332 U. S.
727.
161 F.2d 113 reversed.
In a habeas corpus proceeding in which the petitioner sought
release from imprisonment under a sentence upon her plea of guilty
to an indictment for conspiracy to violate the Espionage Act of
1917, the District Court dismissed
Page 332 U. S. 709
the writ. The Circuit Court of Appeals affirmed. 161 F.2d 113.
This Court granted certiorari. 331 U.S. 800.
Reversed and
remanded, p.
332 U. S.
727.
MR. JUSTICE BLACK announced the judgment of the Court and an
opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, and MR.
JUSTICE RUTLEDGE concurred.
The petitioner was indicted for conspiracy to violate the
Espionage Act of 1917. [
Footnote
1] The specific charge was that, in order to injure the United
States and to aid the German Reich, she and twenty-three others had
conspired during the second World War to collect and deliver vital
military information to German agents.
With no money to hire a lawyer and without the benefit of
counsel, the petitioner appeared before a federal district judge,
told him that the indictment had been explained to her, signed a
paper stating that she waived the "right to be represented by
counsel at the trial of this cause," and then pleaded guilty. Under
her plea, she could have been sentenced to death or to imprisonment
for not more than thirty years. After thirteen months in jail
following her plea, the court sentenced her to four years in
prison.
In this habeas corpus proceeding, she charged that the sentence,
resting as it did solely on her plea of guilty,
Page 332 U. S. 710
was invalid for two reasons: first, she alleged that the plea
was entered by reason of the coercion, intimidation, and deception
of federal officers in violation of the due process clause of the
Fifth Amendment. Second, she alleged that she neither
understandingly waived the benefit of the advice of counsel nor was
provided with the assistance of counsel as required by the Sixth
Amendment. As the Government concedes, these charges entitle the
petitioner to have the issues heard and determined in a habeas
corpus proceeding, and, if true, invalidate the plea and sentence.
[
Footnote 2] The District Court
heard evidence offered by both the petitioner and the Government,
and then found that she had failed to prove either contention. 72
F. Supp. 994. The Sixth Circuit Court of Appeals affirmed, with one
judge dissenting. 161 F.2d 113.
On the basis of what he designated as "the undisputed evidence,"
the dissenting judge concluded that petitioner had pleaded guilty
because of her reliance upon the legal advice of a Federal Bureau
of Investigation (FBI) lawyer-agent, which advice "was, though
honestly given, false." Neither the District Court nor the majority
of the Circuit Court of Appeals controverted this conclusion of the
dissenting judge. A challenge to a plea of guilty made by an
indigent defendant, for whom no lawyer has been provided, on the
ground that the plea was entered in reliance upon advice given by a
government lawyer-agent, raises serious constitutional questions.
Under these circumstances, we granted certiorari in this case. 331
U.S. 800.
It thus becomes apparent that determination of the questions
presented depends upon what the evidence showed. There was
conflicting testimony on many points
Page 332 U. S. 711
in this case. We do not attempt to resolve these conflicts. Our
conclusion is reached from the following facts shown by the
testimony of government agents or by undisputed evidence offered by
petitioner.
The petitioner was born in Germany. In that country, she bore
the title of countess. She and her husband came to the United
States in December, 1926. Since 1930, they have lived in Detroit,
where the petitioner has been a housewife and her husband an
instructor in German at Wayne University. Her husband is a
naturalized citizen of the United States; her own naturalization
papers have been pending for some time. They have four children,
three of whom were born in this country as American citizens.
August 24, 1943, between 6 and 7 a.m., six FBI agents came to
their home. The petitioner was in bed. She was informed that she
must get up and go with them. The home was searched with her
husband's permission. She was taken to the local office of the FBI,
fingerprinted, photographed, and examined by a physician. From
there, she was taken to the Immigration Detention Home, placed in
solitary confinement, and, with one exception noted below, not
permitted to see or communicate with anyone outside for the next
four days. Two FBI agents persistently but courteously examined her
every day from about 10 a.m. until about 9 p.m. She knew nothing
about her arrest and detention except that she was being held
indefinitely on a presidential warrant "as a dangerous enemy
alien." She was informed "that the FBI is an investigating agency,
and not a prosecuting, and as an enemy alien I [she] was not
allowed to see an attorney." During this first period of
questioning, the only relaxation of petitioner's incommunicado
status was a single permission to relay instructions through an FBI
agent to her husband, who was told how to look after their
nine-year-old diabetic child. The child, for whom the mother
had
Page 332 U. S. 712
specially cared since his infancy, required a strict diet and
injections twice daily.
September 1, eight days after her early morning arrest,
petitioner was taken before an Enemy Alien Hearing Board. She was
not then informed of any specific charges against her, but she was
told that she could not be "represented by a legal attorney" at the
hearing. The results of this hearing were not make known to her. At
its conclusion, she was returned to the detention home.
September 18, the petitioner was handed the indictment against
her. In our printed record, this document covers a little more than
fourteen pages. It charges generally, in the language of the
statute, that the twenty-four defendants conspired to violate the
statute. It also enumerates forty-seven overt acts alleged to have
been performed in pursuance of the objects of the conspiracy, five
of which acts specifically refer to the petitioner. Four out of the
five merely allege that the petitioner "met and conferred with" one
or more of the other defendants; the fifth alleges that she
"introduced" someone to one of the defendants.
September 21, almost a month after her arrest, the petitioner
and a codefendant, Mrs. Leonhardt, were taken to the courthouse for
arraignment. Upon being told that the two defendants had no
attorney and no means to obtain one, the judge said he would
appoint counsel right away, and would not arraign them until they
had seen an attorney. They were then led "to the bull pen to wait
for the attorney." Before any attorney arrived, they were taken
back into the courtroom. Court was in session. As explained by
petitioner and corroborated by others,
"Judge Moinet was on the bench, and there seemed to be a trial
going on, because Judge Moinet appointed a lawyer in the courtroom.
He said 'Come here, 'so and so,' and help these two women out,' and
the young lawyer objected to that; he said he didn't want to have
anything to do with
Page 332 U. S. 713
that. But then he consented, just for the arraignment, to help
out, and he came over to us -- we were sitting on the side bench,
and he asked me, 'How do you want to plead?' I said, 'Not guilty.'
And he asked Mrs. Leonhardt, and she said the same thing. So he
told us that, he whispered to us, in fact he went over it,
whispered that it would not be advisable, but I do not know even
now why, but he suggested it would be proper to stand mute."
In this two- to five-minute whispered conversation (the lawyer
said "a couple of minutes") the lawyer asked both defendants if
they "understood what this was all about." They indicated that they
did. He did not even see the indictment, did not inform the
petitioner as to the nature of the charge against her or as to her
possible defenses, and did not inquire if she knew the punishment
that could be imposed for her alleged offense. The case on trial
was then interrupted, the charge was made against the defendants,
who stood mute, and a plea of not guilty was entered. With
reference to their future representation by an attorney, the
petitioner's uncontradicted testimony was that the judge "said he
would appoint an attorney right away, and I understood that the
gentleman was to be expected to come right away."
The two women, unable to get out on bond, were then immediately
taken from the courthouse to the Wayne County jail. The matron
there informed the petitioner that she had strict orders to hold
the petitioner and Mrs. Leonhardt "incommunicado." Notwithstanding
this order, however, the FBI agents continued to visit and talk
with both of them and a third defendant, Mrs. Behrens, every day
except Sunday. During this period, all three of them were allowed
to read and discuss among themselves the unfavorable newspaper
reports which their arrest and indictment had occasioned. They
talked also with the FBI agents about this adverse publicity and
about how they should plead to the charges.
Page 332 U. S. 714
September 25, one month and one day after Mrs. von Moltke's
arrest, two lawyers came to the jail to see her. They had been sent
by her husband. One of them appears to have taken the husband's
language course at Wayne University. These lawyers' message was the
first communication she had been permitted to receive from her
husband since her removal to the county jail. She had been so well
shut off from the outside world that she thought he did not even
know where she was then confined. These lawyers informed her that,
although they had come at her husband's request, they would not
represent her as counsel. Furthermore, they warned her that they
would not even hold what she said in confidence, and that they
would feel free to disclose anything she told them to the
Government. Only one of the lawyers appeared at the trial. He
testified that the petitioner was concerned during their visit for
her children and her husband, whom the university had removed from
his $4,000 position the day after her arrest. She particularly
inquired whether it would help her husband to get his university
position back if she pleaded guilty, but received no counsel on the
subject one way or another. In fact, the lawyers emphasized a
number of times that they could not and would not advise her what
she should do. Although they gave her a form of cross-examination
regarding the charges against her in the indictment, they did not
attempt to explain to her the implications of these charges, or to
advise her as to any possible defenses to them, or to inform her of
the permissible punishments under the indictment.
September 28, three days after the lawyers' visit, the
petitioner and Mrs. Leonhardt were taken by FBI agents to the
marshal's office, where they talked with the assistant district
attorney about what plea they should enter. Mrs. Leonhardt
announced there that she would plead guilty, which plea she later
entered, but the petitioner first
Page 332 U. S. 715
asked for the opportunity of discussing the matter with her
husband. He came to the marshal's office, was allowed to talk with
his wife in the "bull pen," and advised her not to do anything
before she saw a lawyer. She then declined to plead guilty, and was
taken back to jail.
October 7, nine days later, she did plead guilty without having
talked to any lawyer in the meantime except the FBI
agent-attorneys, although she had seen her husband several more
times. A few days before the 7th, Mrs. Behrens had entered a plea
of guilty, and rumors reached the petitioner that other defendants
named in the indictment would also plead guilty. During the
interval between the 28th of September and petitioner's plea of
guilty on the 7th of October, the FBI men had talked to her daily.
She had particularly asked them whether, under United States law,
she would have the right to a trial if all her codefendants pleaded
guilty. The agent's reply, as he remembered it, was "that the
question of trial would be up to the United States attorney's
office." She also repeatedly plied the agents with questions as to
what plea she should enter in order to reduce as much as possible
the injurious publicity of the affair, and what would be the least
harmful course to make it possible for her husband to recover his
old position. She was also vitally interested in whether she would
be deported, and whether, if she did plead guilty, her sentence
could be served close to her family. All of these subjects the
agents talked over with her in their daily conversations, and one
of them offered to, and did, discuss them with the assistant
district attorney on her behalf. Following this discussion, the
agent brought back word to the petitioner that the assistant
district attorney could not control deportation, publicity, or the
place of her imprisonment, but that, if she pleaded guilty, he
would write a letter to the controlling authorities and recommend
that she be imprisoned close to her family.
Page 332 U. S. 716
About this time, one of the lawyer-agents of the FBI discussed
the petitioner's legal problems with her at great length. According
to his testimony, he did his best to explain the implications of
the indictment. She told this agent-attorney about a statement she
had heard while in jail that, unless she pleaded guilty, her
husband would be involved, and she asked the agent if this were
true. He replied that he could not answer this question. She also
asked one of the lawyer-agents whether mere association with people
guilty of a crime -- such association as that with which she was
charged in the five overt acts -- was sufficient, in itself, to
bring about her conviction under the indictment. This agent,
according to the petitioner, then explained the indictment to her
by the use of a "Rum Runners" plot as an example. She testified
that he said:
"That if there is a group of people in a 'Rum' plan who violate
the law, and another person is there and the person doesn't know
the people who are planning the violation and doesn't know what is
going on, but still it seemed after two years this plan is carried
out, in the law, the man who was present becomes . . . the person
nevertheless is guilty of conspiracy. . . ."
The FBI agent did not deny that he had given her the rum runner
illustration. In fact, the agent said that it was quite possible
that the conversation had occurred. [
Footnote 3]
During the ten days prior to her plea of guilty, petitioner had
many conversations with FBI agents about how she should plead to
the indictment. In resolving her doubts, she had no legal counsel
upon whom to rely
Page 332 U. S. 717
except the government lawyer-agents, since neither she nor her
husband could afford a lawyer, and the counsel promised by Judge
Moinet never appeared. Her chief concern in trying to decide
whether to plead guilty was not the indictment, or possible
imprisonment; as was testified by government agents, "She was
concerned about her husband and his job," and "she was hoping to do
whatever would be best for her husband and her child." That her
troubled state of mind was recognized by the prosecuting attorney
is shown by these leading questions he asked her on
cross-examination:
"Q. Now, isn't it true that, up until the time you plead
[
sic] guilty, you repeatedly asked the agents for advice
as to whether you should plead guilty or not? Isn't that true?"
"A. There was nobody else I could ask."
"Q. Well, just say yes or no."
"A. Yes."
October 7, having reached a temporary decision, she went with
two of the agents to the assistant district attorney and told him
that she wanted to plead guilty. Since Judge Moinet was not
available, she was taken before another judge, who was unfamiliar
with the case. At first, he would not accept the plea of guilty
because she then had no lawyer, and the record before him indicated
that she had previously pleaded not guilty under the advice of
counsel. But, in response to the judge's questions, she said that
she understood the indictment and was voluntarily entering a plea
of guilty. The judge then permitted petitioner to sign a written
waiver of counsel. The whole matter appears to have been disposed
of by routine questioning within five minutes during an interlude
in another trial. If any explanation of the implications of the
indictment or of the consequences of her plea was then mentioned by
the judge, or by anyone in his presence, the record does not show
it. Nor is there
Page 332 U. S. 718
anything to indicate she was informed that a sentence of death
could be imposed under the charges. The judge appears not to have
asked petitioner whether she was able to hire a lawyer, why she did
not want one, or who had given her advice in connection with her
plea. Apparently he was not informed that the petitioner's only
legal counsel had come from FBI agents.
Petitioner continued thereafter to worry about whether she had
acted wisely in changing her plea to guilty. On learning in
January, 1944, from an FBI agent that she could request permission
to withdraw the plea, she sent messages to the district attorney
seeking such permission. Some months later, Judge Moinet appointed
counsel solely for the purpose of filing a motion for leave to
withdraw her plea. Counsel did file such a motion, but its
dismissal as tardy [
Footnote 4]
was required by the Criminal Appeals
Page 332 U. S. 719
Rules, even if the motion had been made when petitioner first
learned of her rights. Had the motion to withdraw the plea of
guilty not been tardy, the court would have been required to
consider it in the light of what this Court declared in
Kercheval v. United States, 274 U.
S. 220,
274 U. S.
223:
"A plea of guilty differs in purpose and effect from a mere
admission or an extrajudicial confession; it is itself a
conviction. . . . Out of just consideration for persons accused of
crime, courts are careful that a plea of guilty shall not be
accepted unless made voluntarily after proper advice and with full
understanding of the consequences. [
Footnote 5]"
It is suggested that some adverse inference should be drawn
against the petitioner because she failed to try to appeal from her
conviction and sentence following the denial of her motion. In view
of her counsel's appointment solely for "the purpose of moving that
she be allowed to withdraw her plea" of guilty, it is questionable
whether he had authority to prosecute an appeal from her conviction
and sentence. At least the appointed counsel did not take an
appeal, and he was the only lawyer petitioner had. Furthermore, the
futility of an appeal based
Page 332 U. S. 720
upon the trial court's refusal to permit the withdrawal of the
plea was obvious, in view of her failure to meet the strict
requirements of Rule II(4). It seems pretty plain that the
petitioner has raised the question here in the only proper way --
by habeas corpus proceedings.
We accept the government's contention that the petitioner is an
intelligent, mentally acute woman. It is not now necessary to
determine whether, as the Government argues, the District Court
might reasonably have rejected much of petitioner's testimony. Nor
need we pass upon the government's contention that the evidence
might have supported a finding that the FBI lawyer-agent did not
actually give her the erroneous advice that mere association with
criminal conspirators was sufficient, in and of itself, to make a
person guilty of criminal conspiracy. For, assuming the correctness
of the two latter contentions, we are of the opinion that the
undisputed testimony previously summarized shows that, when
petitioner pleaded guilty, she did not have that full understanding
and comprehension of her legal rights indispensable to a valid
waiver of the assistance of counsel.
First. The Sixth Amendment guarantees that an accused,
unable to hire a lawyer, shall be provided with the assistance of
counsel for his defense in all criminal prosecutions in the federal
courts.
Walker v. Johnston, 312 U.
S. 275,
312 U. S. 286;
see Foster v. Illinois, 332 U. S. 134,
332 U. S.
136-137. This Court has been particularly solicitous to
see that this right was carefully preserved where the accused was
ignorant and uneducated, was kept under close surveillance, and was
the object of widespread public hostility.
Powell v.
Alabama, 287 U. S. 45. The
petitioner's case bristled with factors that made it all the more
essential that, before accepting a waiver of her constitutional
right to counsel, the court be satisfied that she fully
comprehended her perilous position. We were waging total war with
Germany. She had a German
Page 332 U. S. 721
name. She was a German. She had been a German countess. The war
atmosphere was saturated at that time with a suspicion and fear of
Germans. The indictment charged that, while this country was at war
with Germany and Japan, the petitioner had conspired with others to
betray our military secrets to Germany. She had been kept in close
confinement since her arrest. Many of her alleged coconspirators
had already pleaded guilty. If found guilty, she could have been,
and many people might think should have been, legally put to death
as punishment for violation of the Espionage Act. If not executed,
she could have been imprisoned for thirty years or for such shorter
period as the judge in his discretion might fix. Even when the
trial court was about to impose sentence on this petitioner
following her plea of guilty, a lawyer might have rendered her
invaluable aid in calling to the court's attention any mitigating
circumstances that might have inclined him to fix a lighter penalty
for her. Anyone charged with espionage in wartime under the statute
in question would have sorely needed a lawyer; Mrs. von Moltke in
particular, desperately needed the best she could get.
Second. A waiver of the constitutional right to the
assistance of counsel is of no less moment to an accused who must
decide whether to plead guilty than to an accused who stands trial.
See Williams v. Kaiser, 323 U. S. 471,
323 U. S. 475.
Prior to trial, an accused is entitled to rely upon his counsel to
make an independent examination of the facts, circumstances,
pleadings, and laws involved, and then to offer his informed
opinion as to what plea should be entered. Determining whether an
accused is guilty or innocent of the charges in a complex legal
indictment is seldom a simple and easy task for a layman, even
though acutely intelligent. Conspiracy charges frequently are of
broad and confusing scope, and that is particularly true of
conspiracies under the Espionage Act.
See e.g., 312 U.
S.
Page 332 U. S. 722
United States, 312 U. S. 19;
United States v. Heine, 151 F.2d 813. And especially
misleading to a layman are the overt act allegations of a
conspiracy. Such charges are often, as in this indictment, mere
statements of past associations or conferences with other persons,
which activities apparently are entirely harmless standing alone. A
layman reading the overt act charges of this indictment might
reasonably think that one could be convicted under the indictment
simply because he had, in perfect innocence, associated with some
criminal at the time and place alleged. The undisputed evidence in
this case that petitioner was concerned about many of these legal
questions -- such as the significance of the overt act charges, and
her possibilities of defense should all her codefendants plead
guilty -- emphasizes her need for the aid of counsel at this
stage.
Third. It is the solemn duty of a federal judge before
whom a defendant appears without counsel to make a thorough
inquiry, and to take all steps necessary to insure the fullest
protection of this constitutional right at every stage of the
proceedings.
Johnson v. Zerbst, 304 U.
S. 458,
304 U. S. 463;
Hawk v. Olson, 326 U. S. 271,
326 U. S. 278.
This duty cannot be discharged as though it were a mere procedural
formality. In
Powell v. Alabama, 287 U. S.
45, the trial court, instead of appointing counsel
particularly charged with the specific duty of representing the
defendants, appointed the entire local bar. This Court treated such
a cavalier designation of counsel as a mere gesture, and declined
to recognize it as a compliance with the constitutional mandate
relied on in that case. It is in this light that we view the
appointment of counsel for petitioner when she was arraigned. This
lawyer, apparently reluctant to accept the case at all, agreed to
represent her only when promised by the judge that it would take
only two or three minutes to perform his duty. And it seems to have
taken no longer. Even
Page 332 U. S. 723
though we assume that this attorney did the very best he could
under the circumstances, we cannot accept this designation of
counsel by the trial court as anything more than token obedience to
his constitutional required duty to appoint counsel for petitioner.
Arraignment is too important a step in a criminal proceeding to
give such wholly inadequate representation to one charged with a
crime. The hollow compliance with the mandate of the Constitution
at a stage so important as arraignment might be enough, in itself,
to convince one like petitioner, who previously had never set foot
in an American courtroom, that a waiver of this right to counsel
was no great loss -- just another legalistic formality. We are
unable to agree with the government's argument that the momentary
appointment of the lawyer for arraignment purposes supports the
contention that the petitioner intelligently waived her right to
counsel. In fact, that court episode points in the other direction,
for the judge then told the petitioner that he would appoint
another lawyer "right away" for her -- which he never did until
long after she had pleaded guilty, too late to do her any good.
Fourth. We have said:
"The constitutional right of an accused to be represented by
counsel invokes, of itself, the protection of a trial court, in
which the accused -- whose life or liberty is at stake -- is
without counsel. This protecting duty imposes the serious and
weighty responsibility upon the trial judge of determining whether
there is an intelligent and competent waiver by the accused.
[
Footnote 6]"
To discharge this duty properly in light of the strong
presumption against waiver of the constitutional right to counsel,
[
Footnote 7] a judge must
investigate as long and as thoroughly as the circumstances of the
case before
Page 332 U. S. 724
him demand. The fact that an accused may tell him that he is
informed of his right to counsel and desires to waive this right
does not automatically end the judge's responsibility. To be valid,
such waiver must be made with an apprehension of the nature of the
charges, the statutory offenses included within them, the range of
allowable punishments thereunder, possible defenses to the charges
and circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole matter. A judge can
make certain that an accused's professed waiver of counsel is
understandingly and wisely made only from a penetrating and
comprehensive examination of all the circumstances under which such
a plea is tendered.
This case graphically illustrates that a mere routine inquiry --
the asking of several standard questions followed by the signing of
a standard written waiver of counsel -- may leave a judge entirely
unaware of the facts essential to an informed decision that an
accused has executed a valid waiver of his right to counsel. And
this case shows that such routine inquiries may be inadequate,
although the Constitution "does not require that, under all
circumstances counsel be forced upon a defendant."
Carter v.
Illinois, 329 U. S. 173,
329 U. S.
174-175. For the record demonstrates that the petitioner
welcomed legal aid from all possible sources; there would have been
no necessity for forcing counsel on her.
Twice, the court did designate counsel for petitioner. The first
occasion was upon her arraignment. Petitioner appears willingly to
have cooperated with this appointed counsel for the two or three
minutes he was called upon to act. The second occasion was when
counsel was named for the sole purpose of moving to withdraw her
plea of guilty. Notwithstanding her unfortunate first encounter
with court-appointed counsel, and despite the fact that counsel was
not designated the second time until it was obviously months too
late to submit this
Page 332 U. S. 725
motion under the procedural rules, there is no complaint that
the petitioner failed to cooperate with him. And the record is
filled with evidence from many witnesses that the petitioner
persistently sought legal advice from all of the very limited
number of people she was permitted to see during the period of her
close incarceration before her plea of guilty was entered. It is
apparent from the record that, when she did plead guilty, the
slightest deviation from the court's routine procedure would have
revealed the petitioner's perplexity and doubt. For the testimony
of all the witnesses points unerringly to the existence of the
uncertainty which was obviously just below the surface of the
petitioner's statements to the judge.
Fifth. The right to counsel guaranteed by the
Constitution contemplates the services of an attorney devoted
solely to the interests of his client.
Glasser v. United
States, 315 U. S. 60,
315 U. S. 70.
Before pleading guilty, this petitioner undoubtedly received advice
and counsel about the indictment against her, the legal questions
involved in a trial under it, and many other matters concerning her
case. This counsel came solely from government representatives,
some of whom were lawyers. The record shows that these
representatives were uniformly courteous to her, although there is
no indication that they ever deviated in the slightest from the
course dictated by their loyalty to the Government as its agents.
In the course of her association with these agents, she appears to
have developed a great confidence in them. Some of their evidence
indicates a like confidence in her. [
Footnote 8]
The Constitution does not contemplate that prisoners shall be
dependent upon government agents for legal counsel and aid, however
conscientious and able those agents may be. Undivided allegiance
and faithful, devoted service to a client are prized traditions of
the American
Page 332 U. S. 726
lawyer. [
Footnote 9] It is
this kind of service for which the Sixth Amendment makes provision.
And nowhere is this service deemed more honorable than in case of
appointment to represent an accused too poor to hire a lawyer, even
though the accused may be a member of an unpopular or hated group
or may be charged with an offense which is peculiarly
abhorrent.
The admitted circumstances here cannot support a holding that
petitioner intelligently and understandingly waived her right to
counsel. She was entitled to counsel other than that given her by
Government agents. She is still entitled to that counsel before her
life or her liberty can be taken from her.
What has been said represents the views of MR. JUSTICE BLACK,
MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, and MR. JUSTICE RUTLEDGE.
They would therefore reverse the judgment of the Circuit Court of
Appeals, set aside the prior judgment of the District Court, and
direct that court to grant the petitioner's prayer for release from
further imprisonment under the judgment based on her plea of
guilty. MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON, for the
reasons stated in a separate opinion, agree that the judgment of
the Circuit Court of Appeals
Page 332 U. S. 727
should be reversed, and that the District Court's prior judgment
should be set aside, but they are of the opinion that, after
setting aside its judgment, the District Court should further
consider and make explicit findings on, the questions of fact
discussed in the separate opinion.
The judgment of the Circuit Court of Appeals is reversed, and
that of the District Court is set aside. The cause is remanded to
the District Court so that it may hold further hearings and give
consideration to, and make explicit findings on, the questions of
fact discussed in the separate opinion. If, upon such further
hearings and consideration the District Court finds that the
petitioner did not competently, intelligently, and with full
understanding of the implications, waive her constitutional right
to counsel, an order should be entered directing that she be
released from further custody under the judgment based on her
plea.
It is so ordered.
[
Footnote 1]
Section 32 defines the substantive crime of espionage. Section
34 declares conspiracies to violate § 32 to be unlawful. 40 Stat.
217, 50 U.S.C. §§ 32, 34.
[
Footnote 2]
Waley v. Johnston, 316 U. S. 101;
Walker v. Johnston, 312 U. S. 275,
312 U. S. 286;
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 467;
cf. Sunal v. Large, 332 U. S. 174,
332 U. S.
177.
[
Footnote 3]
"Q. And did you during that discussion use a [
sic]
illustration about a rum runner?"
"A. Well, I heard Mrs. von Moltke say that, and since she did, I
have been trying to recall, and I cannot remember such an
illustration."
"Q. I see."
"A. But it is quite possible that Mrs. von Moltke's memory is
better than mine, and I may have used such an illustration."
[
Footnote 4]
Rule II(4) of the Criminal Appeals Rules, effective September 1,
1934, then required such motions to be filed within ten days after
entry of the plea, and before imposition of sentence.
Swift v.
United States, 79 U.S.App.D.C. 387, 148 F.2d 361;
see Hood
v. United States, 152 F.2d 431, 435;
United States v.
Achtner, 144 F.2d 49, 52. It has since been liberalized by
Rule 32(d) of the Federal Rules of Criminal Procedure, effective
March 21, 1946.
Petitioner's brief states that the court denied her motion to
withdraw the plea of guilty "without taking any testimony or
permitting petitioner to take the stand. . . ." The Government has
not challenged that statement. There is nothing in the record which
indicates that the judge allowed any witnesses to testify on the
motion. Nevertheless the judge, "after consideration of said motion
and of the arguments presented," made purported findings of fact to
the effect that she had pleaded guilty "after due and careful
deliberation," and that, at the time she entered the plea, she
"thoroughly understood the nature of the charge contained in the
indictment." Neither the majority nor the minority opinion of the
Circuit Court of Appeals referred to these so-called "findings" as
a support for denial of the motion to withdraw the plea of guilty.
The Circuit Court of Appeals simply justified the denial on the
ground that the motion was filed "far too late."
[
Footnote 5]
On this same subject,
see Orfield, Criminal Procedure
from Arrest to Appeal (1947) at 300:
"Since a plea of guilty is a confession in open court and a
waiver of trial, it has always been received with great caution. It
is the duty of the court to see that the defendant thoroughly
understands the situation and acts voluntarily before receiving
it."
See also 4 Blackstone, Commentaries at *329:
"Upon a simple and plain confession, the court hath nothing to
do but to award judgment; but it is usually very backward in
receiving and recording such confession, out of tenderness to the
life of the subject, and will generally advise the prisoner to
retract it and plead to the indictment,"
and Bowyer, Commentaries on the Constitutional Law of England
(1846) at 355:
"The civil law will not allow a man to be convicted on his bare
confession, not corroborated by evidence of his guilt, because
there may be circumstances which may induce an innocent man to
accuse himself."
[
Footnote 6]
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 465;
see also Adams v. United States ex rel. McCann,
317 U. S. 269,
317 U. S.
270.
[
Footnote 7]
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 464;
Glasser v. United States, 315 U. S.
60,
315 U. S.
70.
[
Footnote 8]
See note 3
supra.
[
Footnote 9]
American Bar Association, Canons of Professional and Judicial
Ethics, Canon 15:
"The lawyer owes 'entire devotion to the interest of the client,
warm zeal in the maintenance and defense of his rights and the
exertion of his utmost learning and ability,' to the end that
nothing be taken or withheld from him, save by the rules of law,
legally applied. No fear of judicial disfavor or public
unpopularity should restrain him from the full discharge of his
duty. In the judicial forum, the client is entitled to the benefit
of any and every remedy and defense that is authorized by the law
of the land, and he may expect his lawyer to assert every such
remedy or defense."
Canon 4:
"A lawyer assigned as counsel for an indigent prisoner ought not
to ask to be excused for any trivial reason, and should always
exert his best efforts in his behalf."
Separate opinion of MR. JUSTICE FRANKFURTER, in which MR.
JUSTICE JACKSON joins.
The appropriate disposition of this case turns for me on the
truth of petitioner's allegation that she was advised by an FBI
agent, active in the case, that one who merely associated, however
innocently, with persons who were parties to a criminal conspiracy
was equally guilty.
We are dealing, no doubt with a person of intellectual
acuteness. But it would be very rare, indeed, even for an extremely
intelligent layman to have the understanding necessary to decide
what course was best calculated to serve her interests when charged
with participation in a conspiracy. The too easy abuses to which a
charge of conspiracy may be put have occasioned weighty
animadversion by the Conference of Senior Circuit Judges.
Report
Page 332 U. S. 728
of the Attorney General, 1925, pp. 5, 6,
and see also
the observations of Judge Learned Hand in
United States v.
Falcone, 109 F.2d 579, 581,
aff'd in
311 U. S. 311 U.S.
205. The subtleties of refined distinctions to which a charge of
conspiracy may give rise are reflected in this Court's decisions.
See, e.g., Kotteakos v. United States, 328 U.
S. 750. Because of its complexity, the law of criminal
conspiracy, as it has unfolded, is more difficult of comprehension
by the laity than that which defines other types of crimes. Thus,
as may have been true of petitioner, an accused might be found in
the net of a conspiracy by reason of the relation of her acts to
acts of others, the significance of which she may not have
appreciated, and which may result from the application of criteria
more delicate than those which determine guilt as to the usual
substantial offenses. Accordingly, if an FBI agent, acting as a
member of the prosecution, gave her, however honestly, clearly
erroneous legal advice [
Footnote
2/1] which might well have induced her to believe that she was
guilty under the law as expounded to her by one who for her
represented the Government, a person in the petitioner's situation
might well have thought a defense futile and the mercy of the court
her best hope. Such might have been her conclusion, however
innocent she may have deemed herself to be. I could not regard a
plea of guilty made under such circumstances, made without either
the advice of counsel exclusively representing her or after a
searching inquiry by the court into the understanding
Page 332 U. S. 729
that lay behind it, as having been made on the necessary basis
of informed, self-determined choice.
Of course, an accused, "in the exercise of a free and
intelligent choice, and with the considered approval of the court .
. . , may . . . competently and intelligently waive" his right to
the assistance of counsel guaranteed by the Sixth Amendment.
Adams v. United States ex rel. McCann, 317 U.
S. 269,
317 U. S. 275,
and see Patton v. United States, 281 U.
S. 276, and
Johnson v. Zerbst, 304 U.
S. 458. There must be both the capacity to make an
understanding choice and an absence of subverting factors, so that
the choice is clearly free and responsible. If the choice is
beclouded, whether by duress or by misleading advice, however
honestly offered by a member of the prosecution, a plea of guilty,
accepted without more than what this record discloses, can hardly
be called a refusal to put the inner feeling of innocence to the
fair test of the law with intelligent awareness of consequences.
Therefore, if the FBI agent had admitted that the petitioner
accurately stated his advice to her, or if the District Court, upon
a conflict of testimony, had found that memory or truth lay with
the petitioner, I could not escape the conclusion that the
circumstances under which the petitioner's plea of guilty was
accepted did not measure up to the safeguards heretofore enunciated
by this Court for accepting a plea of guilty, especially where a
sentence of death was at hazard.
On the record as we have it, however, I cannot tell whether the
advice which, if given, would have colored the plea of guilty was
actually given. If the unrevealing words of the cold record spoke
to me with the clarity which they convey to four of my brethren, I
should agree that the petitioner must be discharged. Conversely, if
the District Court's opinion conveyed to me the findings which it
radiates to my other brethren, I too would conclude that the
judgment should be affirmed.
Page 332 U. S. 730
Unfortunately, the record does not give me a firm basis for
judgment regarding the crucial issue of the FBI agent's advice to
the petitioner. It is not disputed that the agent, who was also a
lawyer, did talk with her, and did discuss legal issues with her.
But he neither admitted nor denied whether, in the course of his
discussions with her, he expounded the law so as hardly to leave
her escape, however innocent under correct view of the law she may
have been. He did not even suggest that, even though he did not
remember, he was confident that he could not have given her the
kind of misleading legal information she attributed to him. On the
contrary, he added that "it is quite possible that Mrs. von
Moltke's memory is better than mine." [
Footnote 2/2] From the dead page, in connection with the
rest of the agent's testimony, this suggests a scrupulous witness.
But I cannot now recreate his tone of voice or the gloss that
personality puts upon speech. Therefore, I am unable to determine
whether the petitioner pleaded guilty in reliance on the palpably
erroneous advice of an FBI lawyer-agent who, as the symbol of the
prosecution, owed it to an accused in petitioner's position to give
her accurate guidance, if he gave any.
Nor does the District Judge's opinion resolve these difficulties
for me. From what he wrote, it would be the most tenuous guessing
whether he rejected the petitioner's account of the FBI agent's
counseling or whether he did not attach to that issue the legal
significance which
Page 332 U. S. 731
I deem controlling. [
Footnote
2/3] Since the record affords neither resolving evidence nor
the District Court's finding on what I deem to be the circumstance
of controlling importance, I would send the cause back to the
District Court for further proceedings with a view to a specific
finding of fact regarding the conversation between petitioner and
the FBI agent, with as close a recreation of the incident as is now
possible.
[
Footnote 2/1]
This is the precise testimony:
"That, if there is a group of people in a 'Rum' plan who violate
the law, and another person is there, and the person doesn't know
the people who are planning the violation and doesn't know what is
going on, but still it seemed after two years this plan is carried
out, in the law, the man who was present becomes . . . the person
nevertheless is guilty of conspiracy."
The law, of course, is precisely to the contrary.
United
States v. Falcone, 311 U. S. 205,
311 U. S.
210.
[
Footnote 2/2]
"Q. And did you [the FBI agent], during that discussion, use a
[
sic] illustration about a rum runner?"
"A. Well, I heard Mrs. von Moltke say that, and since she did, I
have been trying to recall, and I cannot remember such an
illustration."
"Q. I see."
"A. But it is quite possible that Mrs. von Moltke's memory is
better than mine, and I may have used such an illustration."
[
Footnote 2/3]
The District Judge indicated abandonment of the charges that
the
"agents of the Federal Bureau of Investigation mislead
[
sic] her or made promises to her that, which at least
[in] some degree, influenced her action in pleading guilty to the
charge,"
but, "for the purpose of the record," he stated "most vigorously
that there was absolutely nothing in the testimony sustaining such
charges or implications." While it does appear from the record that
petitioner abandoned her charge of coercion, there is nothing to
buttress the suggestion that she abandoned the charge that she had
been misled by the agent, and I therefore read the statement as
referring to threats or promises to induce confession by the
petitioner. The District Judge gave no intimation whatever that, in
his view, the plea of guilty, in connection with all the other
circumstances, could not be deemed to have been intelligently
tendered if, in fact, it was influenced by the FBI agent's
exposition of the law, as asserted by the petitioner. Nowhere is
there a suggestion that, although the agent was not prepared to say
her memory of the interview was false or incorrect, the District
Judge rejected her account.
MR. JUSTICE BURTON, with whom THE CHIEF JUSTICE and MR. JUSTICE
REED concur, dissenting.
As the issues in this case are factual, and deal largely with
the credibility of witnesses, the binding force of this decision as
a precedent is narrow. However, to guard against undue extension of
its influence, a recorded dissent seems justified.
The Government does not contest the release of the petitioner if
she establishes, as a matter of fact, that either her long
considered and unequivocal plea of guilty
Page 332 U. S. 732
in the original proceedings against her for violation of the
Espionage Act or her written and otherwise clearly stated waiver of
counsel in those proceedings was not freely, intelligently, and
knowingly made. The Government vigorously contends that she has
failed in this proceeding to establish either of those facts. We
agree with the Government. She has failed to do so, and, having so
failed, she is not entitled to release. The printed record does not
require reversal of the judgment. The uniform findings of fact
against her by the three trial judges who separately saw and heard
her are amply sustainable.
The petitioner made her plea of guilty and filed her waiver of
counsel in open court before District Judge Arthur F. Lederle on
October 7, 1943. In November, 1944, after consideration and denial
of her motion for leave to withdraw her plea of guilty, she was
sentenced by District Judge Edward J. Moinet. She has made no
direct attack on the judgment against her. Accordingly, before
considering the exceptional burden of proof which she must bear in
making a collateral attack upon that judgment more than a year
after it was entered, it is well to examine the process of law
which led up to this judgment.
At her arraignment, September 21, 1943, before District Judge
Edward J. Moinet, she was assigned counsel to assist her during the
arraignment. Such counsel advised her to stand mute. She did so.
This conduct preserved her full rights, and it has not prejudiced
her position. A plea of not guilty was entered for her. This left
her free to stand by it or to change it to a plea of guilty, as she
later did. There is no indication that other counsel could have
done more for her than was done. She thus was made aware that the
court would assign counsel to assist her. In fact, she testified
that, after the arraignment, "Judge Moinet said he would appoint
an
Page 332 U. S. 733
attorney right away, and I understood that the gentleman was to
be expected to come right away." This referred to the period after
her arraignment.
In addition to this contact with the attitude of the court on
the subject of counsel, she frequently discussed the subject of
counsel with her husband. He himself had some legal education. She
also talked with two lawyer friends of her husband who came to see
her as friends, although not professionally. She likewise discussed
her situation on many occasions with the representatives of the
Federal Bureau of Investigation, and occasionally with
representatives of the United States Attorney. She repeatedly was
urged by her husband not to do anything until she had consulted
with an attorney. On the basis of this advice, she decided not to
plead guilty on September 28, although several other defendants in
the same proceeding had done so. She testified as follows about her
husband's advice and about her decision of September 28:
"Q. He told you to get a lawyer?"
"A. Yes; he said I should not [plead guilty] before I have seen
an attorney; on such a question, I should talk to an attorney first
about the whole thing."
"
* * * *"
"A. My husband said to wait until a lawyer comes out."
"Q. And you decided not to plead guilty because of that?"
"A. Because of that, yes."
Several days later, she finally determined to plead guilty. On
October 7, 1943, she expressly waived counsel both in open court
and in writing. As to this, she later was asked on the stand:
Page 332 U. S. 734
"Q. So, during the week, you decided to disregard the advice
that your husband had given you?"
"A. Yes, sir."
"Q. You made that decision; yes or no?"
"A. Yes."
In other words, she had discussed her situation to her own
satisfaction to the point where she had reached a conclusion both
as to her plea of guilty and as to her wish to waive counsel. There
is no constitutional provision that required or permitted counsel
to be thrust upon her against her wishes. She had a right to decide
that she did not want to discuss her case further with anyone. The
issue was not then, and is not now, whether she might have been
benefited by having counsel. She was an "intelligent, mentally
acute woman," and, for reasons of her own, she made up her mind
that she wished to plead guilty and to waive counsel. If she did
this freely, intelligently and knowingly, that was her right, and
that action should be final, subject only to a motion to withdraw
her plea in regular course by due process of law or to appeal from
the judgment rendered on her plea. Under the rules of the court,
any withdrawal of her plea had to be made within ten days after
entry of such plea, and before sentence was imposed.Rules for
Criminal Appeals, Rule II(4), 292 U.S. 662. This was not done.
Judge Lederle, to guard against any misunderstanding, on October 7,
1943, especially inquired if she desired the assistance of counsel.
She answered in the negative. He then inquired as to what her plea
was. She answered "guilty." In addition, she submitted a written
waiver of counsel. The court then deferred sentence and referred
the case to the United States Probation Officer for investigation
and report. Ample time was taken for this.
Page 332 U. S. 735
In June, 1944, she was taken before Judge Moinet, before whom
she originally had been arraigned. She then advised him that she
wished to change her plea. The judge informed her that she was
entitled to representation by counsel, and that an attorney ought
to make a motion for permission to withdraw her plea and that, if
she had a preference as to counsel, he would appoint such counsel
as she desired him to appoint. The matter was left in abeyance
while she tried to select counsel. On July 3, 1944, she wrote to
Judge Moinet, advising him that she had no preference, and the
court soon thereafter appointed counsel for the purpose of making
her motion. The assistance rendered by such counsel is not
criticized. He secured from Judge Moinet not merely a ruling upon
the procedural point as to the untimeliness of her motion, but also
specific findings bearing upon its merits. This order made by Judge
Moinet, about a year after her arraignment before him, is
significant because of its direct relation to the issue now before
the Court. His order read as follows:
"This cause having come on for hearing upon the motion of the
defendant Grafin Marianna von Moltke for leave to withdraw her plea
of guilty, heretofore entered, and for leave to enter a plea of Not
Guilty to the indictment filed herein, the matter after hearing,
having been submitted, the Court, after consideration of said
motion and of the arguments presented on behalf of the respective
parties hereto, specifically finds:"
"1. That the defendant Grafin Marianna von Moltke was properly
advised of her constitutional rights by the Court, both prior to
and at the time she entered her plea of Guilty to the
indictment;"
"2. That the plea of Guilty, entered several weeks after the
filing of the indictment and her arraignment
Page 332 U. S. 736
thereon, was submitted after due and careful deliberation;"
"3. That the defendant was advised of and thoroughly understood
the nature of the charge contained in the indictment filed in this
cause;"
"4. That no promises or inducements or threats were made for the
purpose of obtaining the plea of Guilty, and that the entry of the
plea of Guilty was not due to any misrepresentations;"
"5. That the motion praying for leave to withdraw the plea of
Guilty was not filed within the period fixed by Rule II(4) adopted
by the Supreme Court of the United States of America;"
"Wherefore, It is Ordered that the said motion to withdraw the
plea of guilty entered by the defendant Graffin [Grafin] Marianna
von Moltke in the above entitled cause be, and the same is hereby,
denied."
This was in November, 1944. Judge Moinet asked the defendant
whether she had anything to say why judgment should not be
pronounced against her, and, no sufficient reason to the contrary
being shown or appearing to the judge, he sentenced her to
imprisonment for four years. She began serving her sentence.
However, after a determination had been made by the Government in
1945 looking toward her removal and repatriation to Germany, she,
in 1946, filed a petition for habeas corpus making the present
collateral attack on the original proceedings. We therefore are
asked to review here the factual findings of the District Court
made in April, 1946, through District Judge Ernest A. O'Brien in
this habeas corpus proceeding and, by way of collateral attack, to
review the action of the same District Court, taken in the original
proceeding through Judge Lederle in October, 1943, and through
Judge Moinet in November, 1944. While such proceedings by habeas
corpus, based on constitutional grounds, are vital to the
preservation of individual rights,
Page 332 U. S. 737
the protection of our judicial process against the making, in
this way, of unjustified attacks upon such process is equally
important to the preservation of the rights of the people as a
whole. Each attempted attack calls for the careful weighing not
only of the claims made, but also of the proof submitted to sustain
each claim.
In now attacking collaterally the unappealed and deliberate
judicial proceedings of 1944, a heavy burden of proof rests upon
the petitioner to establish the invalidity of her original plea and
waiver. The essential presumption of regularity which attaches to
judicial proceedings is not lightly to be rebutted.
Johnson v.
Zerbst, 304 U. S. 458,
304 U. S.
468-469;
Hawk v. Olson, 326 U.
S. 271,
326 U. S. 279.
Judge O'Brien recognized the strength of this presumption and the
heavy burden of proof to be borne by the petitioner. He therefore
held extended hearings at which the petitioner and many others
appeared as witnesses. The evidence included a substantial showing
that the trial judge, in accepting the petitioner's plea of guilty
in the original proceeding, had done so only after satisfying
himself, by careful questioning, that the plea was not the result
of threats or promises and that, with knowledge of her right to
counsel, the petitioner had voluntarily waived that right.
* At the
conclusion of these hearings, Judge O'Brien found not only that the
petitioner had failed to sustain the burden resting upon her, but
that the overwhelming weight of the evidence in these proceedings
was against her.
His statement as the trial judge in the habeas corpus
proceedings is impressive and entitled to great weight here:
"In the petition filed in this cause, the petitioner directly or
by implication charges that the District
Page 332 U. S. 738
Attorney having the case in charge and agents of the Federal
Bureau of Investigation mislead [misled] her or made promises to
her that which, at least [in] some degree, influenced her action in
pleading guilty to the charge. I am of the opinion that these
charges have now been abandoned by the petitioner, but, for the
purposes of the record, I wish to state most vigorously that there
was absolutely nothing in the testimony sustaining such charges or
implications. The conduct of both the officials of the District
Attorney's office and the agents of the Federal Bureau of
Investigation were meticulous in safeguarding the rights of the
petitioner, and that the record is utterly bare of any support of
petitioner's contentions."
"The petitioner is a woman obviously of good education and above
the average in intelligence. Her knowledge of English was fluent
and ample. She had discussed the case with various people before
the plea of guilty was entered. In fact, at her own request, she
had a conference with the chief assistant district attorney wherein
she endeavored to secure from him some promises of leniency and
convenience as an inducement to a plea of guilty. These
advancements by the petitioner were, of course, repudiated by the
district attorney, and she was informed of the officials who had
jurisdiction over the matter in advent [the event] of her plea of
guilty."
"The chief contention of the petitioner was that her waiver of
her right to counsel was not competently and intelligently made.
The plea was taken before Judge Arthur Lederle of this District.
The evidence showed that the Judge inquired of her if she
understood the charges made in the indictment. She answered in the
affirmative. The Judge inquired if she desired the assistance of
counsel. She answered in
Page 332 U. S. 739
the negative. The Judge then inquired what was her plea. She
answered 'guilty.' In addition to this, she submitted a signed
waiver stating that she did not desire counsel."
"
* * * *"
"The only substantial question in this case is whether the
petitioner intelligently and knowingly waived her constitutional
rights. It was her obligation to sustain the allegations of her
petition by a preponderance of evidence. Not only has she failed in
this, but I believe that the evidence is overwhelming against her
contentions. The petitioner is an intelligent, mentally acute
woman. She understood the charge and the proceedings. She freely,
intelligently and knowingly waived her constitutional rights. I
conclude, therefore, that there is no merit in her petition, and
that it shall be dismissed together with the writ."
72 F. Supp. 994, 995, 997.
The Circuit Court of Appeals affirmed the judgment dismissing
the petition for the writ of habeas corpus. That judgment is now
brought here, and we are called upon to make a further review of
the factual conclusions of the District Court in the habeas corpus
proceedings.
Due process of law calls for an equal regard by us for the
interests of the Government and of the petitioner in seeking the
nearest possible approximation to the truth. Necessarily, we have
only the printed record here. On the other hand, the trial judge,
faced by the same issues, heard spoken the words we now read. He
saw the original instruments that we now see reproduced. He
observed the conduct and expressions of the petitioner and of the
other witnesses, whereas we cannot make an informed independent
conjecture as to such conduct or expressions. From the living
record, he found the factual issues overwhelmingly against the
petitioner.
Page 332 U. S. 740
There is nothing in the printed record sufficient to convince us
that, if we had seen the witnesses and heard the testimony, we
would not have reached the same conclusion. Much less is there
anything in it that convinces us that, not having seen or heard it
made, we are justified in reversing his findings which were based
upon more than can be before us. Under the circumstances, we
believe that the truth is more nearly approximated and justice is
more surely served by reading the printed record in the strong
light of the trial judge's factual conclusions than by attempting
to interpret that record without giving large effect to his
conclusions as to its credibility and to the inferences he has
drawn from it. The aid to the ascertainment of the truth to be
derived from the trial court's impartial observation of the
witnesses should not be dissipated in the process of review. His
appraisal of the living record is entitled to proportionately more,
rather than less, reliance the further the reviewing court is
removed from the scene of the trial.
See District of Columbia
v. Pace, 320 U. S. 698,
320 U. S. 701;
United States v. Johnson, 319 U.
S. 503,
319 U. S. 518;
Williams Mfg. Co. v. United Shoe Machinery Corp.,
316 U. S. 364,
316 U. S. 367;
Delaney v. United States, 263 U.
S. 586,
263 U. S.
589-590.
Her status as an enemy alien does not, in itself, affect her
right to counsel or the informed character of her plea of guilty
and her waiver of counsel. The fact that the charge against her was
under the Espionage Act, and therefore carried a technical
possibility of the death penalty, did not at any time it produce a
practical consideration that she was in actual danger of suffering
capital punishment. She accurately forecast the general character
of her sentence, and was concerned primarily with the wish that her
sentence be served near her family. An assistant district attorney
stated that he would write a letter recommending that she be
imprisoned close to her family.
Page 332 U. S. 741
While a conspiracy is exceptionally difficult to define in all
its legal and factual complexities, there is nothing in the
Constitution that prevents an accused from freely, intelligently,
and knowingly choosing to plead guilty to that, as well as to other
complex charges, for reasons best known to the accused, as an
alternative to standing trial on that charge. This was her right.
Having thus positively decided not to stand trial, she did not
require counsel in order freely, intelligently, and knowingly to
waive counsel.
Our Constitution, Bill of Rights, and fundamental principles of
government call for careful and sympathetic observance of the due
process of law that is guaranteed to all accused persons, including
enemy aliens like the petitioner. The Constitution, however, was
adopted also in order to establish justice, insure domestic
tranquility, promote the general welfare, and secure the blessings
of liberty to the people of the United States as a whole. To that
end, it is equally important to review with sympathetic
understanding the judicial process as constitutionally administered
by our courts. While the majority of this Court are not ready to
affirm the judgment below on the record as it stands, their
decision to remand the case for further findings does not mean that
established and salutary general presumptions in favor of the
validity of judicial proceedings and in favor of a trial court's
conclusions as to the credibility of witnesses are to be
relaxed.
*
See Adams v. United States ex rel. McCann,
317 U. S. 269,
317 U. S.
276-277.