In a Michigan State Court in 1938, petitioner, a Negro then 17
years old and with only a seventh-grade education, said that he did
not desire counsel, pleaded guilty to murder, and was sentenced to
solitary confinement at hard labor for life without possibility of
parole, the maximum sentence permitted under Michigan law. In 1950,
he filed a delayed motion for new trial, as permitted by Michigan
law, claiming that his conviction and sentence were invalid because
he did not have the assistance of counsel at the time of his plea
and sentence. This motion was denied by the trial court, and the
State Supreme Court affirmed. It appeared from the record that, at
the time of his trial, petitioner had several possible defenses
involving questions of considerable technical difficulty obviously
beyond his capacity to understand, and that his waiver of counsel
and plea of guilty may have been induced by fear of mob violence
resulting from statements made to him by the Sheriff.
Held: on the record in this case, petitioner had
sustained his ultimate burden of proving that his plea of guilty
was invalidly accepted without benefit of counsel, and that he did
not validly waive his right to counsel; and the Judgment is
reversed and the cause remanded for further proceedings. Pp.
355 U. S.
156-165.
(a) Petitioner's case falls within that class in which the
intervention of counsel, unless intelligently waived, is an
essential element of a fair hearing. P.
355 U. S.
159.
(b) The circumstances compel the conclusion that petitioner's
rights could not have been fairly protected without the assistance
of counsel. Pp.
355 U. S.
159-160.
(c) Where a person convicted in a state court has not
intelligently and understandingly waived the benefit of counsel,
and where the circumstances show that his rights could not have
been fairly protected without counsel, the Due Process Clause
invalidates his conviction. Pp.
355 U. S.
160-161.
(d) Where the right to counsel is of such critical importance as
to be an element of Due Process under the Fourteenth Amendment, a
finding of waiver is not lightly to be made. P.
355 U. S.
161.
Page 355 U. S. 156
(e) In this case, petitioner had the burden of showing, by a
preponderance of the evidence, that he did not intelligently and
understandingly waive his right to counsel. Pp.
355 U. S.
161-162.
(f) The fear of mob violence planted by the Sheriff in
petitioner's mind raises an inference that his refusal of counsel
was motivated by a desire to be removed from the local jail at the
earliest possible moment; this is consistent with the trial judge's
report of his interview with petitioner; and a rejection of federal
constitutional rights motivated by fear cannot, in the
circumstances of this case, constitute an intelligent waiver of
counsel. Pp.
355 U. S.
162-165.
344 Mich. 137,
73
N.W.2d 274, reversed, and cause remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
On October 29, 1938, the Circuit Court of Kalamazoo County,
Michigan, accepted the petitioner's plea of guilty to an
information charging him with the murder of an elderly white lady.
He was sentenced to solitary confinement at hard labor for life in
Michigan's Jackson Prison, where he has since been confined.
[
Footnote 1] Petitioner, a
Negro with a seventh-grade education, was 17 years old at the time.
On May 26, 1950, he filed a delayed motion for a new trial in the
Circuit Court. He asserted constitutional invalidity in his
conviction and sentence because he did not have the assistance of
counsel at the time of his plea and sentence. The Circuit Court,
after hearing, denied the motion, and the Supreme Court of
Page 355 U. S. 157
Michigan affirmed. [
Footnote
2] We granted certiorari to decide the important question
raised involving a plea of guilty to a charge of murder where the
accused was without the benefit of counsel. [
Footnote 3]
The petitioner was arrested during the afternoon of October 26,
1938, a few hours after the murder was committed. He was confined
in a Kalamazoo jail, and was questioned by local law authorities
from time to time until the afternoon of October 28, when he orally
confessed to the crime. [
Footnote
4] On Saturday morning, October 29, 1938, he was arraigned in
the Circuit Court, where he pleaded guilty, was adjudged guilty of
murder in the first degree, and, after sentence, was transferred
from the Kalamazoo jail to the Jackson Prison.
In accordance with the then prevailing procedure, no
stenographic transcript was taken of the proceedings in the Circuit
Court at the time of the arraignment and plea. However at the
hearing held on the delayed motion for a new trial, two witnesses,
who were present in the courtroom on October 29, 1938, testified as
to what then transpired. On the basis of their testimony, the
Circuit Court, in denying the motion for new trial, found as a fact
-- which finding is, of course, accepted by us -- that, before the
petitioner tendered the plea of guilty, the trial judge asked the
petitioner
"whether he had a lawyer and
Page 355 U. S. 158
whether he desired to have a lawyer, and that [the petitioner]
gave a negative reply to both of these inquiries, and stated that
he wanted to get the matter over with."
The record further discloses that, at the arraignment, the trial
judge, acting in conformity with Michigan procedure, which required
him to conduct an investigation into the voluntariness of any plea
of guilty, [
Footnote 5]
conferred privately with petitioner for "some five to ten minutes"
in chambers. Upon the return of the judge and petitioner to the
courtroom, the judge stated that the plea would be accepted, and
proceeded to conduct the hearing required by Michigan law [
Footnote 6] to determine the degree of
the offense of murder. At this hearing, several witnesses testified
to the details of the crime. The petitioner took no part in the
examination of these witnesses, nor did he testify. At the
conclusion of the testimony, the trial judge pronounced judgment
that the petitioner was guilty of murder in the first degree, and
imposed sentence.
The judge made a statement, stenographically transcribed, that,
over the previous three years, the petitioner had "been in trouble
four or five times, consisting of breaking and entering and
unlawful taking of automobiles," and had been handled as a juvenile
offender on such occasions. He also stated that the petitioner had
"discussed the whole affair [the murder] very freely with me in all
its revolting details," and that,
"in my private interview with respondent, I assured him that he
must not plead guilty unless he really is guilty; that he was not
required to plead guilty; that he could have a trial by jury if he
desired it. He assured me freely and voluntarily that he is guilty,
and that his one desire is to have it all over, to get to the
institution to which he is to be
Page 355 U. S. 159
committed, and to be under observation and to be examined. . .
."
The judge at this point recited the details of the crime as told
to him by the petitioner, and then stated:
"Such is his story to me in private, told very calmly, without
any compulsion whatever. He insists that there is something wrong
with his head; that he has had something akin to queer sensations
before this."
We may reasonably infer from the record that neither the trial
judge nor the Michigan courts which considered the delayed motion
thought that the petitioner's plight required the assistance of
counsel to satisfy the requisites of the fair hearing secured by
the Due Process Clause of the Fourteenth Amendment in a state
prosecution. The principles determining the extent to which this
constitutional right to counsel is secured in a state prosecution
have been discussed in a long series of decisions of this Court.
[
Footnote 7] We hold that the
petitioner's case falls within that class in which the intervention
of counsel, unless intelligently waived by the accused, is an
essential element of a fair hearing.
The petitioner was 17 years of age, and had a seventh-grade
education.
Cf. DeMeerleer v. Michigan, 329 U.
S. 663;
Wade v. Mayo, 334 U.
S. 672;
Williams v. Huff, 79 U.S.App.D.C. 326,
146 F.2d 867. He was charged with
Page 355 U. S. 160
a crime carrying Michigan's maximum penalty,
viz.,
solitary confinement at hard labor for life without possibility of
parole. Mich.Stat.Ann.1954, §§ 28.548, 28.2304.
Cf. Powell v.
Alabama, 287 U. S. 45. The
record shows possible defenses which might reasonably have been
asserted at trial, but the extent of their availability raised
questions of considerable technical difficulty obviously beyond his
capacity to comprehend. For instance, one possible defense was
insanity, suggested by the trial judge's statements that
"his one desire is to have it all over, to get to the
institution to which he is to be committed, and to be under
observation and to be examined . . . he insists that there is
something wrong with his head; that he has had something akin to
queer sensations before this."
Another possible defense was mistaken identity, suggested by the
fact that the evidence pointing to him as the perpetrator of the
crime was entirely circumstantial.
Cf. Pennsylvania ex rel.
Herman v. Claudy, 350 U. S. 116;
Rice v. Olson, 324 U. S. 786.
Moreover, the proceedings to determine the degree of murder, the
outcome of which determined the extent of punishment, introduced
their own complexities. With the aid of counsel, the petitioner,
who, as we have said, neither testified himself in the proceeding
nor cross-examined the prosecution's witnesses, might have done
much to establish a lesser degree of the substantive crime, or to
establish facts and make arguments which would have mitigated the
sentence. The right to counsel is not a right confined to
representation during the trial on the merits.
Reece v.
Georgia, 350 U. S. 85. The
circumstances compel the conclusion that the petitioner's rights
could not have been fairly protected without the assistance of
counsel to help him with his defense.
However, we may also infer from the record that the Michigan
courts held that, even if petitioner was constitutionally entitled
to the assistance of counsel, he waived
Page 355 U. S. 161
this right when he told the trial judge that "he didn't want
one, didn't have one, he wanted to get it over with." The
constitutional right, of course, does not justify forcing counsel
upon an accused who wants none.
See Carter v. Illinois,
329 U. S. 173,
329 U. S. 174.
But,
"where a person convicted in a state court has not intelligently
and understandingly waived the benefit of counsel, and where the
circumstances show that his rights could not have been fairly
protected without counsel, the Due Process Clause invalidates his
conviction. . . ."
Pennsylvania ex rel. Herman v. Claudy, 350 U.
S. 116,
350 U. S. 118.
Where the right to counsel is of such critical importance as to be
an element of Due Process under the Fourteenth Amendment, a finding
of waiver is not lightly to be made.
Cf. Johnson v.
Zerbst, 304 U. S. 458,
304 U. S. 464;
Glasser v. United States, 315 U. S.
60,
315 U. S. 70;
Von Moltke v. Gillies, 332 U. S. 708,
332 U. S.
723.
This Court held in
Johnson v. Zerbst, supra, that, when
a judgment of conviction entered in a federal court is collaterally
attacked upon the ground that the defendant did not have the
benefit of counsel, he has the burden of showing, by a
preponderance of the evidence, that he did not have counsel and did
not competently and intelligently waive his constitutional right to
the assistance of counsel. We have found that the petitioner was
entitled to the benefit of counsel to secure the fair hearing
guaranteed to him by the Due Process Clause of the Fourteenth
Amendment. Whatever may be the differences in the substantive right
to counsel in federal and state cases, when the defendant in a
state case has established his constitutional right to the benefit
of counsel, he should carry the same burden of proving nonwaiver as
is required of a defendant in a federal case. We therefore hold
that the rule of
Johnson v. Zerbst applies in this case,
and that the petitioner had the burden of showing, by a
Page 355 U. S. 162
preponderance of the evidence, that he did not intelligently and
understandingly waive his right to counsel.
Notwithstanding the petitioner's express disavowal, before his
plea, of a desire for counsel, the petitioner developed evidence at
the hearing on the delayed motion which sustained his burden of
showing that the disavowal was not intelligently and
understandingly made, and hence was not a waiver.
Williams v.
Huff, 79 U.S.App.D.C. 326, 146 F.2d 867. This crucial
evidence, apparently not known to the trial judge, was brought out
on the cross-examination of the Sheriff of Kalamazoo County at the
hearing on the delayed motion, and concerned conversations between
the Sheriff and the petitioner before the petitioner orally
confessed on the afternoon of October 28, 1938:
"Q. You didn't advise him it would probably be best to plead
guilty?"
"A. Well, the only way I could answer that right is just to give
you a little of the conversation there, perhaps, if you wish me
to."
"Q. Relate that, that will probably be helpful."
"A. In talking with Willie Moore -- that was before he had made
any statement -- I told him that if he was guilty of it he might
better own up on it, because, I says, there could be trouble.
Tension is very high outside, and there could be trouble. If you
are not guilty of it, why then, I says, I would stand pat forever
after. Then I told -- I spoke to him about what would be required
of him, and I would have to take him to the Municipal Court for his
arraignment in the lower court and then back over there, and I told
him he would be entitled to a hearing in lower court, and I says,
'There you will have the Judge read to you and you can waive or
demand an examination. You are entitled to an examination over
there. It is
Page 355 U. S. 163
my duty, and it is up to me, to protect you, to use every effort
at my command to protect you,' but, I says, '
the tension is
high out there and I am just telling you what could happen if it
was started by someone.' I don't know the language I
used."
"
* * * *"
"Q. Did you also tell him if he plead guilty he would be sent to
Jackson immediately? Do you remember saying anything like
that?"
"A. I don't know as I come out and said at any time for him to
plead one way or the other,
but what I was putting over to him
was the fact that if you are guilty and will be sent away you might
better be getting away before trouble, because I had had
information there was certain colored fellows, a group of them,
that was going to interfere with me, and also that there was a
bunch of Holland fellows going to meet me when I go to Jackson,
they would meet me there at Galesburg there, and, therefore, when
he was sentenced I avoided the main route and went way through by
Gull Lake and across over in the hills there."
(Emphasis supplied.)
Although the trial judge rejected the petitioner's testimony as
not worthy of belief, in this instance, the Sheriff corroborated
the petitioner's testimony, given before the Sheriff took the
stand, that the Sheriff had told him
"that if I didn't plead guilty to this crime, they couldn't
protect me, under those conditions, they says, during the riot,
that they didn't know what people they would do, and that they
couldn't protect me."
Petitioner further testified that he pleaded guilty because of
that statement of the Sheriff: "After the man tell me he couldn't
protect me, then there wasn't nothing I could do. I was mostly
scared than anything else."
Page 355 U. S. 164
The Circuit Court found the Sheriff's testimony insignificant
because other evidence showed that there was, in fact,
"no threat of mob violence, no congregation of anything that
could by any stretch of reasoning be considered a mob or a riotous
gathering, and that, while the Sheriff felt inclined to take
certain precautions and did take certain precautions to avoid any
trouble, there was nothing in the situation then existing to
indicate that the respondent had been coerced into a false plea, or
that he had been placed in fear of insisting upon his
constitutional rights."
But plainly it is of no moment to the inquiry that the situation
described to the petitioner by the Sheriff did not exist. The
petitioner saw only law officers while being held continuously in
close confinement from a time just hours after the murder until he
orally confessed, and was hardly in a position to know or test the
accuracy of what the Sheriff told him. The Sheriff's statement must
be evaluated for its effect upon the capacity of this 17-year-old
Negro youth of limited education and mental capacity to make an
intelligent, understanding waiver of constitutional rights of
supreme importance to him in his situation.
We believe that the expectation of mob violence, planted by the
Sheriff in the mind of this then 17-year-old Negro youth, raises an
inference of fact that his refusal of counsel was motivated to a
significant extent by the desire to be removed from the Kalamazoo
jail at the earliest possible moment. The trial judge's report of
his interview with the petitioner is consistent with this inference
in that the report states that the petitioner told the judge that
"his one desire is to have it all over, to get to the institution
to which he is to be committed, and to be under observation and to
be examined." A rejection of federal constitutional rights
motivated by fear cannot, in the circumstances of this case,
constitute an intelligent waiver. This conclusion against an
intelligent waiver is
Page 355 U. S. 165
fortified by the inferences which may be drawn from the age of
petitioner,
Williams v. Huff, 79 U.S.App.D.C. 326, 146
F.2d 867, and the evidence of emotional disturbance,
Hallowell
v. United States, 197 F.2d 926.
We thus conclude that the petitioner had sustained his ultimate
burden of proving that his plea of guilty was invalidly accepted as
obtained without the benefit of counsel and that he did not waive
his right to counsel.
The judgment is reversed, and the cause is remanded for
proceedings not inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
Michigan long ago abolished capital punishment. The sentence is
the maximum sentence for murder. Mich.Stat.Ann. (Henderson 1938) §
28.548. Comp.Laws 1948, § 750.316.
See Quicksall v.
Michigan, 339 U. S. 660,
339 U. S.
664.
[
Footnote 2]
People v. Moore, 344 Mich. 137,
73
N.W.2d 274. The majority opinion relied upon
Quicksall v.
Michigan, 339 U. S. 660; the
dissenting opinion upon
DeMeerleer v. Michigan,
329 U. S. 663.
[
Footnote 3]
352 U.S. 907.
[
Footnote 4]
Defendant was questioned on the night of his arrest until
approximately 2 or 3 o'clock in the morning of the following day.
On October 27, 1938, he was questioned from approximately 8 a.m.
until 10 or 11 p.m. On October 28, 1938, he was questioned from
approximately 8 a.m. until noon, and again in the afternoon, when
he orally confessed. He was then taken before a municipal court
justice, where he waived examination and was bound over to Circuit
Court for trial.
[
Footnote 5]
Mich.Stat.Ann.1954, § 28.1058. For present practice,
see Mich.Acts 1957, No. 256; Mich.Court Rule 35-A, adopted
June 4, 1947, effective September 1, 1947.
[
Footnote 6]
Mich.Stat.Ann.1954, § 28.550.
[
Footnote 7]
Powell v. Alabama, 287 U. S. 45;
Smith v. O'Grady, 312 U. S. 329;
Betts v. Brady, 316 U. S. 455;
Williams v. Kaiser, 323 U. S. 471;
Tomkins v. Missouri, 323 U. S. 485;
House v. Mayo, 324 U. S. 42;
Rice v. Olson, 324 U. S. 786;
Hawk v. Olson, 326 U. S. 271;
Canizio v. New York, 327 U. S. 82;
Carter v. Illinois, 329 U. S. 173;
DeMeerleer v. Michigan, 329 U. S. 663;
Foster v. Illinois, 332 U. S. 134;
Gayes v. New York, 332 U. S. 145;
Marino v. Ragen, 332 U. S. 561;
Bute v. Illinois, 333 U. S. 640;
Wade v. Mayo, 334 U. S. 672;
Gryger v. Burke, 334 U. S. 728;
Townsend v. Burke, 334 U. S. 736;
Uveges v. Pennsylvania, 335 U. S. 437;
Gibbs v. Burke, 337 U. S. 773;
Quicksall v. Michigan, 339 U. S. 660;
Palmer v. Ashe, 342 U. S. 134;
Chandler v. Fretag, 348 U. S. 3;
Massey v. Moore, 348 U. S. 105;
Pennsylvania ex rel. Herman v. Claudy, 350 U.
S. 116.
MR. JUSTICE BURTON, with whom MR. JUSTICE FRANKFURTER, MR.
JUSTICE CLARK and MR. JUSTICE HARLAN concur, dissenting.
The Court's decision rests upon its view that, despite the
contrary conclusions of the Circuit and Supreme Courts of Michigan,
petitioner has shown that he was in fact so alarmed that he was not
able freely, intelligently, and understandingly to plead guilty and
to waive his right to counsel. But for that issue, this case should
be summarily affirmed on the authority of
Quicksall v.
Michigan, 339 U. S. 660,
which dealt with a comparable situation that arose before the same
trial judge under like procedure.
The only contemporaneous evidence as to petitioner's attitude
and equanimity at the time of his trial, in 1938, is the statement
which Circuit Judge Weimer made while presiding at the trial. He
made it following his private interview with petitioner, and
immediately preceding his acceptance of petitioner's plea of
guilty. He portrayed petitioner as having, in that interview, "very
calmly; without any compulsion whatever" "freely and voluntarily"
discussed his crime, his guilt and "his one desire . . . to have it
all over. . . ." When making
Page 355 U. S. 166
this statement, the judge's attention was focused directly upon
his responsibility to determine the capacity of petitioner to plead
guilty and to waive his constitutional privileges. The statement
accordingly commands respect, and is entitled to great weight.
By 1950, Judge Weimer had died and the prosecuting attorney, who
had conducted the trial for the State, had suffered a stroke
rendering him incapable of testifying. However, two witnesses did
testify, in 1950, as to their recollection of petitioner's demeanor
in 1938.
One was the chief deputy sheriff, who, in 1938, as a deputy
sheriff, had been in charge of taking petitioner to and from the
courtroom and to the lobby when petitioner was leaving for the
penitentiary. His testimony included the following:
"Q. What did you notice, if anything, about his appearance that
would have anything to do with the question whether or not he
appeared to be in fear or relaxed or what?"
"A. He was very relaxed. There was no sign of fear, and no
showing, either physically or by speech."
"Q. Anything that would lead you to that conclusion?"
"A. To not being in fear?"
"A. Yes."
"A. He was nonchalant. . . ."
The other witness was a Circuit Judge, who, in 1938, had
participated, as an assistant prosecutor, in the interrogation of
petitioner when the latter confessed his crime. This witness
testified:
". . . I, of course, felt that his answers were fair -- were
honest and candid in his final statement that he made. That is just
my opinion, but he answered the questions that were put to him. To
me, he seemed very calm, and not excited in the least. He
Page 355 U. S. 167
spoke about it quite in a matter of fact way. His whole attitude
was such that it was hard for me to understand his lack of emotion
in telling the story of just what happened or what he claimed
happened, what he did and what she did."
As against this, petitioner offered his own statement, quoted by
the Court,
ante, p.
355 U. S. 163.
Judge Sweet, who presided in 1950, gave little credence to it, and
said in his opinion:
"While this Court has not disregarded the testimony of the
[petitioner], but, on the contrary, has carefully considered it, it
is the conclusion of this Court that the [petitioner's] testimony
is not worthy of belief. This conclusion is arrived at because of
the manner of the witness while testifying, his interest in the
outcome of these proceedings, and the many points of conflict
between his testimony and the testimony of the two witnesses herein
referred to.
* "
Page 355 U. S. 168
This leaves for consideration the sheriff's statement, quoted by
the Court,
ante, pp.
355 U. S.
162-163. His recollection was that he told petitioner
that, as sheriff, it was his duty to protect petitioner, and that
he would use every effort at his command to do so, but that he
added "
the tension is high out there, and I am just telling you
what could happen if it was started by someone.' I don't know the
language I used." He did not testify as to petitioner's mental or
emotional condition. Furthermore, his recollection as to what he
had said about tension must be read in comparison with the abundant
testimony of others supporting Judge Sweet's conclusion that, in
1938, there had been little community tension, and "no threat of
mob violence. . . ." That the judge discounted the effect of the
sheriff's testimony appears from his denial of petitioner's motion
on the express ground that he believed that petitioner's plea of
guilty "was freely and voluntarily made. . . ."
The issue is one of fact as to what occurred 19 years ago. Three
times, the state courts have concluded that petitioner acted
freely, intelligently and understandingly. On this record, I would
affirm that judgment.
1. The following are examples of the conflicts presented by
petitioner's testimony:
He testified that a large number of people hammered at his cell
door, whereas the sheriff and deputy sheriffs denied this, and said
that it was physically impossible for a group of people to reach
petitioner's cell, and that his cell door was not of a type
conducive to hammering.
Petitioner said that the judge, in arraigning him, did not
inform him of his right to counsel. Several witnesses testified to
the contrary, and Judge Sweet, presiding at the hearing on the
delayed motion, said:
"It is the further conclusion of this Court that, before such
plea was accepted by the late Judge Weimer, the [petitioner] was
informed of his right to a trial by jury and of his right to be
represented by counsel, and that the [petitioner] indicated his
desire to proceed without counsel and without a trial, and his
desire to have his plea of guilty received by the Court and
sentence imposed without further delay."
Petitioner, in testifying as to what took place at his private
interview with Judge Weimer, said repeatedly and unequivocally that
the sheriff came with petitioner into the judge's chambers and not
only was present, but did much of the talking and leading of
petitioner's examination. The sheriff and others, however,
testified that it was the sheriff's practice not to attend such
private sessions of the judge, and that the sheriff was not present
on this occasion, which Judge Weimer described as his "private
interview" with petitioner.