*3 BLACKMUN, Before GIBSON Judges. LAY, Circuit Judge. GIBSON, Circuit appeals Robert G. Warner from guilty finding counts him five verdict counseling aiding, abetting, ad- filing vising preparation returns false and fraudulent income tax 7206(2). The violation of U.S.C. § original consisted indictment dis- counts of which the Government jury acquitted four on missed imposed five. Court sentence custody Attorney months in the of the General each of the five counts had, which conviction was the sentences concurrently. appeared to run Warner inse the District Court. Defendant Warner busi- preparing ness of income tax returns years through 1966 in North County. St. Louis On March Gastorf, Agent Special Jack In- Service, ternal defend- Revenue called at place pretending ant’s of business working a baker wife and sub- mitted other fictitious information os- tensibly prepare enable Warner Gastorf’s tax income returns. days Special Agent Several later Gas- up pick torf returned his returns discrepancies observed several between the information submitted infor- and the mation re- recorded warranting investigation. turn further Special 9 with April the indictment and exhibits At the end of reports erro- IRS audit neously attached were Agent home called at Gastorf Warner’s during Agent. room sent himself as IRS and identified jury’s deliberations; (5) both the place of They proceeded to Warner’s attorney consent, prosecuting im- and the where, with Warner’s business properly commented the failure Agent Special removed Gastorf testify the defendant to own be- with War- files and records connected half. re- An indictment was ner’s business. against defendant on December turned Sixth Amendment 19, 1968. course, Constitution, United States provides defendant with the presented by The evidence the Govern- *4 assistance of counsel. Included within de- ment at in the trial which Warner right right relatively simple. a A of defendant fended himself was right implement waive counsel. This witness was called in connection with ed 28 U.S.C. 1654 and Rule count § each and in each case the witness recognized Fed.R.Crim.P. by identified has been a memorandum of income and Supreme expenses Court in Adams Unit had v. he submitted to Warner McCann, ed having States ex rel. purpose pre- for pare 317 of U.S. Warner 275, 279, 240, 242, return; 63 S.Ct. L.Ed. the tax then the witness (1942): knowledge denied of the source dis- of crepancies between the memorandum “The of short the matter is that an discrepancies and the return. The noted accused, in the exercise of a free and testimony usually simple involved intelligent choice, and with consid- expenses increases in deductible above approval may court, ered of * * * those stated in the memorandum submit- waive his Constitutional * * * ted the client similar reduc- right to and/or of counsel. assistance gross tions income. Of the counts (275) guilty which Warner was found Counts II and III involved under- fraudulent “[T]he Constitution does not force a gross statements of $1000 income lawyer upon (279, a defendant.” 63 S. both and 1965 and an overstate- 242). Ct. expense ment of business of on $1000 return, the 1965 Count IV involved a right one While waive the “ fraudulent understatement of counsel, indulge $500 to every of assistance ‘courts gross income and an unwarranted presumption against reasonable fraudulent $140, deduction of Count VI waiver’ of fundamental constitutional charged a fraudulent rights.” excess Zerbst, business ex- Johnson v. U.S. pense deduction of 458, 464, $1850 Count IX 1019, 1023, 58 S.Ct. 82 L.Ed. charged a (1938). fraudulent excess ex- 1461 required medical Care is to ascer pense $240, deduction of a tain fraudulent that voluntarily a waiver is and in expense telligently and excess interest of deduction made. mis- $100, and excess and a fraudulent interrogated The defendant was twice of cellaneous deduction $15. as to his desire to waive At counsel. arraignment allegations er- Warner raises five of was noted War- ner appearing (1) ef- ror: he was denied the without counsel. Judge he inquired fective of counsel because Meredith assistance as whether sufficiently was not informed re- defendant defendant had funds and arrange- sponded functions of counsel to able to make he could make intelligent an attorney informed and he waiver for an later said ments but right; (2) judgments Judge Mere- wished to defend himself. III, duplicitous; against IX Counts IV and defense dith advised se (3) acknowledged each of the counts and Warner its shortcom- conviction; (4) doing ings insufficient to sustain at the on so insisted Spanbauer literally. ability to Von Moltke expressed financial time same (7th 1966), Burke, Judge F.2d cert. contin- 67 861, lawyer. Meredith hire L. denied attempt to dissuade ued to per (1967), pointing Ed.2d 127 which contains representation, pro se from a study haps most lengthy imprisonment exhaustive that a out suggest- applied law as of waiver Judge then possible. Meredith said, circuits, the various the Court but War- of one week continuation ed a F.2d 72: in St. to work to return ner desired Augustine, then lived where he Florida appears federal “It courts have the mat- expressed desire to have Von looked substance Thus, day. ter handled formulations, its Moltke * * * plea of not and entered waived counsel formulas. [and] guilty. * “(cid:127)* * * * * prior court once to trial Just viewed regard questioned again Warner in question of counsel clearly defend himself and desire to ultimately issue, irrespective ap- the court would him that informed Von trial court's fulfillment its lawyer point a if the defendant could duties, Moltke accused whether the Nevertheless, defendant not afford one. knowingly intelligently chose *5 defending himself. insisted waive counsel.” Virtually appraisal Judge affirm the law Meredith an the same of made was in made this Court Warner from Collins v. ative effort to dissuade States, representing (8th offered United 206 F.2d 918 Cir. himself and also 1953). appointment cannot counsel. A of desire) might a that (much as insist he bar, In the case at the defendant was accept ap or defendant obtain counsel fully right of aware his counsel and pointment counsel. of right appointed was informed of He counsel. edged was of aware and acknowl- of waiver We think Warner’s perils of a se defense intelligently under counsel was guilty finding was informed that a of standing^ Zerbst, su made. Johnson v. lengthy imprisonment. could in result pra, not eas indicated that waiver would Furthermore, considering in the “back- 464, ily presumed at but also stated ground, experience of” the and conduct 1023, of 58 “the determination S.Ct. defendant, appears it that he relative- is intelligent whether has there been ly high sophisticated, graduate, a school right to must de waiver of the counsel and a tax law As student. a mature case, upon particular pend, in each responsibility adult he should bear the surrounding facts circumstances own decision. including background, case, that perience, ex Although we and conduct of the accused.” believe that most cas- prudence suggest es Gillies, A in Von Moltke would a divided court v. somewhat interrogation 708, 316, more 68 92 309 exhaustive S.Ct. L.Ed. require (1948) appears procedural court to a ex determine whether waiv- determining intelligently er of actitude that a waiver of counsel is under- standing^ made, counsel ing made with true understand we believe the facts intelligence. here indicate Von Moltke that indi the waiver was perfunctory handled in a cates the defendant in manner but should be inquiry charges, sufficient formed of nature was made to ascertain range particular punishments, possible of this allowable the assist- charges, ance of intelligently defenses to the and all un- other derstandingly understanding facts essential to a broad made. of the whole matter. 2. Defendant next asserts III, Appeals Counts IV IX United on which convic- States Courts of applied language duplicitous have not tions broad were had were

735 gra- single should; therefore, on a sentation tax return and was be reversed. description of these how defendant aided the claim that each vamen this filing charges of a properly defendant fraudulent return in violation counts Furthermore, knowingly 7206(2). of 26 assisted aided and U.S.C. § specific preparation return each of a tax count was fraudulent concluded with a statutory charge 7206(2) 26 but under 26 U.S.C. U.S.C. § § violation erroneously 7206(2) only. appears each then went Thus count each charged charge count defendant defendant with commit- himself ting misrepresenting on in- several acts material facts one crime. come tax is a returns which violation Where more than one act Further, 18 U.S.C. defendant § count, charged in du the count is not asserts, Count IX that de- failed state plicitous part the acts were required fendant’s willful acts were as single constituting transaction offense. by the statute. Lennon, United States 24 v. 246 F.2d (2d denied, 1957), very There little Cir. cert. substance U.S. allegations. these It is true defend S.Ct. L.Ed.2d Even Oswald, suggests, citing separate ant where two or Missouri v. more offenses charged (Mo.1957) S.W.2d 559 that where one count not be duplicitous charged two distinct crimes are one erroneous where one charged charged count crime the count is void since the contains as an essential charged. element is denied the other crime Unit Johnson, ed States v. unanimous concurrence U.S. charged (1943); each offense a conviction L.Ed. 1546 Price before States, will result. (8th F. 149 1914); Co., United States v. Carter & *6 That is not the situation here. F.Supp. Thus, 56 (W.D.Ky.1944). 311 improper place allegedly In the first the though charges misrepresentation the of segments by each count of the indict personally of may by Warner indirec improperly tion ment out of have been in have been taken violation of 18 U.S.C. 1001, as § well as by violation of 26 U.S. context the The first defendant. 7206(2), actually C. charged, the § crime part complained of each count the counts are charged not for unlawfully, nevertheless that will Warner with duplicity. reason void for fully (Count The crime the IX include did charged was violation 26 aiding knowingly U.S.C. “willfully”), § word and 7206(2). The fact that the cited assisting in, counseling acts procuring, and advising preparation pres violation of and the that statute also have entation of a in false and fraudulent statute, been in violation another by come tax return. This was followed charged, which violation was not will not listing misrepresenta of the several duplicity. render the count void for tions contained in tax the unlawful re complained suggests turn Defendant also in each count. in his reply misrepresentations These brief that Count IX of the were stated in indict ways. improperly two Some return eliminated the stated the tax word “willfully” charge, from was its fraudulent and false in that it con that “will fully” specific (which important part is an tained a error was constituent de scribed), offense, statutory others stated that the return and its elimina tion renders was fraudulent the count false in Robert invalid and void. that represented Since Warner this issue re is first raised in some erroneous fact the ply (which described) by brief it need not be was on considered us. the It return. Finsky v. attempt is clear Union not an Carbide Carbon is charge Corp., 1957), 249 (7th two F.2d 449 crimes in count. Cir. one Each denied, cert. repre instance 356 U.S. described within a count separate (1958). sented L.Ed.2d 1065 misrepre- fraudulent change occurring the the evi- amount of three Defendant contends 3. separate ex- by was times within two returns presented Government dence negatives ceedingly suspect support The inad- verdict. insufficient Govern- vertance. claim is that crux of this figures only ment showed points As the Government did not coincide filed the returns out the evidence in the must be viewed prepared figures the memoranda light prevailing most favorable to the given de- by taxpayers party, verdict sustained must be fendant, were alterations and that such sup if there is substantial evidence taxpayers. Defend- not authorized port States, Teel it. 407 F.2d insufficient because ant this is claims (8th 1969); Cir. Latham v. United ver- prove which failed to Government States, (8th 1969). 407 F.2d We Cir. correct, in- but one in all sion was since presented believe un evidence taxpayers queried stance, were not questionably support sufficient figure were correct but to which verdict. figure they only authorized. which asked 4. Warner next contends light proof the In of the Government’s trial court error committed reversible sending copy of possibility in the case the indictment did exist that bare Government exhibits 8 and 9 to taxpayer errors found each copy room. The of the indictment con- revising tax- which necessitated tained- counts had been which dis- figures. original payer’s missed and crossed out but which were changes clear, however, that no such legible; still exhibits 8 and 9 were tax brought the tax- to the attention of were reports returns with IRS audit attached payers nor such ever were “corrections” allegedly which were not admitted into proved. The defendant authorized evidence. presenting suggested his case never such theory. fact witnesses sending an indictment employees called Warner former to a room within the discretion good honesty who testified judge. Shayne v. United ab- character. We believe States, (9th 1958), 255 F.2d any explanation other the mem- sence of denied, cert. prepared taxpayers raise oranda However, L.Ed.2d in the case at *7 correctness, an inference of the informa- bar, Shayne, unlike the indictment deliv being matters tion summarized therein jury ered to the 4 contained counts knowledge. personal within their own It which had been dismissed. seems Furthermore, the when considers one equally apparent accusations changes by types it made charged than crimes other those not abundantly these becomes clear competent evidence admissible to changes not of errors were result charged. prove the crimes The admis by Warner in the memoranda discovered proven sion in evidence of even crimes taxpayers. prepared by exam- For charged immediately those is than other ple, II and connection with Cóunts cannot most limited. The Government III, gross income of reduced the incompetent escape evi the fact Billy Worley on their Joe .Linda jury presented after to the dence was by exactly 1964 tax return from $1000 referring merely by to trial had ended they they the amount earned claimed being part of the such evidence once to Warner. memorandum submitted indictment. made, changes In 1965 two similar cases, reducing gross Appellant Osborne v. by exactly cites two income $1000 (8th States, Cir. increasing 111 expenses 351 F.2d United and also business States, changes 1965) 11 exactly and Karn v. United None of these $1000. (1946) for the Worleys 158 F.2d 568 disclosed to or autho- Alaska deliver to is error proposition that it rized number them. The round jury to items room which are not was that ad- illustrative summaries were erroneously at mitted in evidence the trial itself. admitted into evidence be- they The Government’s contention that an in- cause amounted more than mere though is dictment not evidence reviewa- arithmetical summaries and in fact were jury procedure upon previous matter ble as a evaluative comments testi- apply portions monial cannot indict- evidence. it error Since dismissed admit which were before trial those it summaries was even more grievous proper and are thus of no concern to the error jury to send them to the jury. begun. room after deliberations had The Beaty Government relies on v. although hand, On the other States, (4th United 213 F.2d 712 occurred, technical error have we 1954), denied, cert. 75 S. prejudiced not do believe Warner was Ct. (1955), L.Ed. 1272 in which thereby find thus we the error .and the Court allowed charts which summa been harmless. Fed.R.Crim.P. rized the evidence delivered 52(a). First, Rule instructed jury during jury’s room delibera jury that an indictment not evi charts, tions. But in that case the while dence and that counts of the indict formally evidence, not admitted into Second, ment had been dismissed. were used witnesses to illustrate virtually dismissed counts were identical testimony. their in substance and factual circumstance to counts not dismissed and added Neither of the directly above cases nothing prejudicial point. little or effect. apposite Steele is not because Third, cases, and Karn present Osborne su case most of the material pra, involved of much more reports contained in the audit was ad highly prejudicial Furthermore, evidence, nature. missible John weight viewing son, the total Gov U.S. 87 L. evidence, appears ernment’s (1943), over supported by Ed. and was whelming essentially unrebutted. evidence admitted in the It case. thus became possibly cumulative. delivery jury of the IRS inadmissible evidence in the audit re reports audit attached to Government ports sent to the was in connection presents pro- exhibits 8 and 9 a similar exhibit which itself was relevant problem. cedural Exhibits 8 and were only to one count on which Warner was nothing more than income tax returns acquitted. However, Beaty in fact containing alleged discrepancies result- apposite not also since in that case ing separate violating counts of significant used charts were to a extent clearly tax laws and were relevant to is- during present while in the properly sues trial and were admitted cognizance case the had little Apparently into evidence. each exhibit reports beginning audit before their de compiled had attached to it IRS audit liberations. The eases would seem to reports separately which were ad- *8 support a rule is it error to send er mitted into evidence. roneously admitted illustrative question The error of whether was jury room, properly to the but admitted sending reports in committed these audit may illustrative materials be the sent to jury to room is a close one. Warner jury room. Where illustrative material States, cites Steele v. United 222 F.2d formally not is admitted delivered to the (5th 1955), Cir. cert. denied 355 U. jury room error has also been commit 828, 39, (1957), S. 2 L.Ed.2d 41 S.Ct. ted, prejudice ap but if no is shown or tax a case in which the Court held it parent, procedural error is harmless. was reversible error to have sent charts jury and to the present exhibits room which to In the case most of the erroneously some subject extent summarized the matter re contained the audit testimonial ports evidence of various witness would have admissible under been decision, however, supra. Moreover, Johnson, es. crux rule only rights Fifth Amend under the reports were referred to fendant’s audit these California, during As a the trial. ment. Griffin v. obliquely if course,

general rule, 14 L.Ed.2d should exhibits (1965). jury have room which not sent not been admitted. to has not been extended auto Griffin matically ei situation in which cover the any however, believe, We judge prosecutor on ther comments un may have occurred was error which defendant’s to take failure stand infor doubtedly of the harmless. Most presenting pro a where the reports noth stated audit mation in the rel. United ex Miller se defense. jurors ing heard in actual than the more 1968), Follette, (2d 397 F.2d 363 Cir. testimony ab much more did so in a cert. denied 393 U.S. complicated Those manner. stract (1969) ; 21 L.Ed.2d 585 Redfield v. beyond may gone have few items which (9th States, F.2d 76 Cir. connected with what was admitted 1963). for The reasons this are obvious relevant exhibit was which exhibit by exemplified are case. was to a count which Throughout the trial Warner exceeded totality light acquitted. In of the question proper procedural In bounds. evidence, stands which Government’s ing witnesses he became embroiled virtually any unrebutted, think that we arguments, attempting to testi in effect occurred was error which Similarly, argument fy he himself. any not harmless and did affect substan evidence, beyond the once far went rights tial of defendant. Fed.R.Crim.P. brought again testifying out facts not to 52(a). Rule during say, this to the trial. Needless Warner’s final contention judge puts prosecutor in a both the reversible error was when committed judge im must eliminate dilemma. judge prosecutor both the trial testimony proper the de unsworn referred, by inference, at least to War- fendant, prosecutor has ner’s failure to take the stand in his right to the attention call own defense. (even made that statements Warner, course, defending defendant) a se counsel is being lawyer himself and not sub- sworn to are not evidence. ject frequent procedural At errors. difficulty The eases demonstrate point, objection by one after balancing Fifth Amend- defendant’s prosecuting attorney im- Warner’s right necessity proper ment with argument proper witness procedure courtroom judge said, you trial “I think should ask prosecutor distinguish questions. you testify If want later gratuitous between evidence and you may.” Again, after Warner’s commentary. defense argument closing improperly which States, McKnight v. United 115 F. objection beyond without went far (6th 1902) it was held that evidence, attorney prosecuting in his pro- comment made closing argument said, “most what fessionally trained counsel de- you argument closing heard in the testify “can fendant rebuttal” was behalf of Mr. Warner and Mr. War- violation Fifth of defendant’s Amend- ner, you did hear from the witness rights and reversible error. The It stand?” these two comments contretemps court between and counsel *9 rights which Warner claims his violated McKnight the occurred over court’s under the Fifth Amendment consti- and produce a demand that defendant docu- tute reversible error. ment in the order to facilitate admission by judge secondary place. or Adverse comments in its De- prosecutor upon to a defendant’s failure fense not refused the de- counsel pos- take the stand is a the de- ever violation of mand but denied defendant prompted the possible sessed document and amount judge and if and judge’s prosecutor response. the aforementioned particularly should be careful not to rights violate such constitutional Curtiss, In United States v. F.2d pro in the case aof se In defendant. 1964) (2d Cir. the court held that a judges most prosecutors cases and can vigorous by prosecuting statement the adequately perform their tasks without attorney to the effect that the defendant commenting a defendant’s failure to was a faker that defendant and “[told] testify. judge pro A can warn a se de- lies, you oath, bold not face under as fendant as his to excesses out and of the chair, witnesses testified on the each jury’s presence perhaps him warn of the every they sworn, and one of them were possible loss and waiver of Fifth oath, testified under defendant rights Amendment which be attend- stood down here and he asked a lot upon judge’s ant to failure follow the in- questions” was reversible constitutional prosecutor A structions. can indicate error. The court further held de- that that a defendant’s comments are not evi- closing argument fendant’s own his dence as he would state that an attor- counsel did not waive Fifth his Amend- ney’s are not comments evidence without rights though beyond ment even he went commenting proaon se defendant’s fail- record, especially since all Govern- testify. to ure objections improper to such state- upheld. ments were The cases cited the Government very would at the least indicate not Redfield, supra, theOn other hand in every case where there is comment judicial the court held comment which reflects failure to take the pro se defendant was entitled to stand will result in reversible error. stand, take the witness was not error. However, Follette, neither nor rationale this decision Redfield Government, the cases relied on repeat- the defendant had been warned entirely analogous to this case. In edly improper about his comments Follette the defendant himself first thus could said his be to have waived brought his failure to take stand rights by Fifth improperly Amendment jury. the attention of In testifying. Redfield the court’s decision was based on the Finally in United ex Miller rel. judge continually that the fact had Follette, supra, found court that a repeatedly admonished defend- prosecutor’s comment to the ant to prop- restrain himself and follow effect that he was not allowed com- questioning argu- er methods of pro ment on the se defendant’s failure to ment, failing and in so do take stand was not error where rights. waived Fifth Amendment Such subject of failure to take the stand was circumstances not did occur in the case defendant; and, first broached at bar addition we retain some furthermore, occurred, if even error theory proposed doubt about waiver was harmless. Redfield, light Supreme by judge Whether the comments Court’s restriction of the doctrine prosecutor present case er- involving cases constitutional general question. ror is a close terms rights. Zerbst, supra. Johnson v. Curtiss, supra. we are inclined to follow true, hand, It is must be able On other the cases cited proper questioning dispositive. limit counsel to defendant are also not argument McKnight he trained The earlier whether case did not in- prosecuting attorney pro se and volve se defendant thus the should have comment latitude indicate to to the defendant’s trained testify what counsel that constitutes evidence what defendant could adversary undoubtedly does as he would a fact rebuttal was within attorney and, knowledge were trained counsel. On the thus other unnecessary. rights totally par- hand constitutional should be *10 comments, (1969) prosecutor’s in Curtiss L.Ed.2d satis- The inflammatory those fied this than in case and whatever error was more were far by Whereas, judge present in Cur- committed in the comments in the case. prosecutor during exigencies tiss, and prosecutor called purposely to drew attention his trial was harmless. liar and stand, the comments take the to failure Judgment affirmed. by prosecutor present judge and inflammatory not and were de- Judge (dissenting). case were LAY, Circuit signed essentially courtroom to control respectfully I dissent. procedure to and to educate by Waiver counsel an accused must what meets the criterion for acquies- be than a mere more formal Only by they in- which consider. designed protect cence. The is to an law they considered com- ference could be improper, accused from an and unwise that, ments, oblique ones at on War- and to foolish forfeiture of the valued ner’s failure take the stand. right, needed counsel. To waive light Curtiss In and meaning Griffin and of which the individ- value probably been committed some error has knowledge, equivalent ual no has in the comments this case comprehensive of no waiver at all. A judge judge prosecutor. But court at examination the trial charge in his that no advise the did very least should demonstrate drawn from adverse should be inference fully is informed under- accused stand, defendant’s failure take stands the nature and elements of prosecutor’s remarks would have and the possible charged, defenses offense proper applied counsel been trained might mitigating circumstances defending any not himself. And behalf, punish- be raised made mild event the remarks These are to be involved. factors Although innocuous. believe we background weighed along and ex- with use, prosecutor must determining perience of the accused in caution, lawyer’s phrase, an excess of an “intel- made whether accused has cases, defense we think state se ligent” “knowing” of coun- unprejudi sufficiently ments here were sel. non-inflammatory and the evi cial and far short record in this case falls overwhelming such er dence so demonstrating even minimal exami- ror committed harmless. as was necessary court to assure the nation Chapman v. Cali case understanding waiver of fornia, 17 L. 386 U.S. S.Ct. proceeding The “waiver” the accused. though reversing (1967), Ed.2d 705 February 3, I brief set so finding court and the constitution lower herein: forth commenting al on de error committed of (Assistant United TRIMBLE “MR. take the not fendant’s failure to stand Honor, Attorney): Your there harmless under the circumstances arraignment. Mr. is here matter in, implication under indicated charged violation the same different set of circumstances not It does revenue law. internal found to error be constitutional could be an attor- has appear that Mr. Warner per se error is not harmless. Such ney. Follette, supra, the consti harmful. Warner, do Mr. “THE COURT: commenting defend tutional error of any you ? funds found take the stand was ant’s failure to harmless. Your be WARNER: “DEFENDANT come Honor, notice to I didn’t receive finding constitu The standards late, afternoon, very Friday until here as deter harmless tional error And it was Augustine, Florida. Harring Chapman, supra, St. mined made get I have here. difficult California, ton *11 Well, attorney. you arrangements “THE I any for an COURT: assume myself plea guilty. want to enter really a of not Is I I can defend And feel right? permitted I be matter. Would to do so ? “DEFENDANT WARNER: That correct, your privi- sir. That is

“THE COURT: lege, it. I don’t but recommend right. “THE COURT: All We will accept plea guilty, I WARNER: of not “DEFENDANT and set any- always Monday, heard that I this matter know. have lawyer a had used himself for March 31st at ten o’clock. one who lawyer. for a a fool “DEFENDANT WARNER: Thank right. you, That is “THE COURT: sir. you, I do “DEFENDANT WARNER: “MR. TRIMBLE: Thank Your income, income, fairly good Honor.”

have I very I think much debt. I am 1, 1969, April the matter On was set arrangements attor- for an can make appeared without trial. The accused ney. lawyer. On the court ex- this occasion you if know “THE COURT: You and determined amined accused offense, you guilty will be of this are he could not afford counsel. follow- away long ing put proceedings for a time ? place: then took Yes, WARNER: “DEFENDANT Well, recall, “THE I at COURT: sir. you up the time this matter came you, you I I “THE If COURT: did advised the Court every put lawyer, not to be make effort would want a ? that correct you. away. up It is Yes, “DEFENDANT WARNER: I lawyer, cer- “DEFENDANT WARNER: sir. I couldn’t afford a and I tainly represent intend to. decided I do better to would myself. I will continue this “THE COURT: 10th, February Monday, thing question until “THE It is not a COURT: lawyer you yourself you at that have of whether or not can afford a lawyer. you time. You are not able know ap- lawyer, will to hire the Court lawyer you not? hire a “Can point you I I one for am certain Your “DEFENDANT WARNER: you day. on that advised of that Honor, possible isn’t it to handle to- Yes, “DEFENDANT WARNER: dáy? Au- I drive back to St. have to sir, you did. gustine as soon and be back work recall, you Ias can. “THE As I COURT: you lawyer. told me didn’t want a you If want “THE COURT: That “DEFENDANT WARNER: lawyer, appointment of a waive true; yes, sir. right. him the form. “Give still “THE COURT: Is that case? (The gives Defendant Clerk form.) Yes, WARNER: “DEFENDANT you liv- “THE COURT: Where sir.

ing? repre- “THE COURT: You want “DEFENDANT WARNER: St. yourself ? sent this matter Augustine, Florida. Yes, WARNER: “DEFENDANT “THE of- COURT: Where was this sir. fense committed? Louis, You “THE

“MR. TRIMBLE: Your COURT: St. privilege.

Honor. *12 “no,” thought, just lawyer. If the accused I answers “MR. RUZICKA: Honor, I cannot this record should be that will suffice. believe that the Your cursory fulfills a perfectly we kind of examination so that don’t have clear obligation judge’s under any problem about fact the Consti- later on the trial States, lawyer appointed not tution. McGee United 355 that a See v. 17, 64, 2 L.Ed.2d 23 him. U.S. (1957).1 You understand “THE COURT: ap- thoroughly Court will intelligent that indi- Even an educated and lawyer you you point law, if don’t vidual, a he is trained in the unless employ one ? understanding the funds to little as to what a has testing the of an indict- trial involves: Yes, “DEFENDANT WARNER: selecting jury, ment, the a fair skill sir. procedure, the rules of the rules of evi- You still don’t “THE COURT: request instructions, dence, or the lawyer a ? want propriety indi- the of Such an conduct. capacity prepare the a vidual lacks to No, “DEFENDANT WARNER: witnesses, defense, to cross-examine sir. objections. proper to He is literal- make You de- “THE want COURT: ly “at sea” the courtroom. yourself? fend an does not mean Such observation Yes, “DEFENDANT WARNER: knowing and in- cannot make a that one sir. However, telligent of waiver' counsel. does not demonstrate an the accused right. All Fine. “THE COURT: complexi- ability fully understand the Bring go. jury in.” Let’s the charge possible ty defenses of proceedings suffi- If the above involved, re- the trial court should then meaning of cient Johnson v. within ject appoint counsel. Cf. waiver Zerbst, 304 58 U.S. Erickson, ex Miner United rel. v. States (1938), to assure 82 L.Ed. (dissenting supra opinion). a de- Such waiver, “intelligent” then court an of only made termination can be judge only inquiry trial need ever indigent searching comprehensive inquiry of accused make is whether government to furnish him a desires the If the court is the accused the court. Supreme McGee, sponsibility determining Court remanded whether plenary hearing, competent intelligent court for to the district there an alia, discharge the time counsel inter a claim at To the accused. investigate duty, failed to court was “waived” district the court must possible long thoroughly inform the accused of defenses cir- as as the charge. Supreme reasonably vacated Court de- cumstances of case Appeals may judgment Court fact an accused mand. The right United v. States he is informed of his the Seventh Circuit state that (7 1957). McGee, 242 F.2d 520 Cir. desires to waive such to counsel and Appeals right automatically Tenth As the Court of of the end does responsibility of the court.” Snell v. Circuit observed: States, right “The assistance of counsel 174 F.2d 581-582 1949). (10 it not sat- is one substance Cir. formality. legalistic g., mere e. ex Ackerman isfied * United States rel. See * * (3 1968) ; duty Russell, F.2d It is the of the Cir. v. (6 judge appears Maxwell, whom defendant 371 F.2d 664 before Meadows v. thorough 1967) ; Cox, F.2d make Shawan v. without Cir. necessary steps (10 1965). inquiry And dis- and to take Cir. see protection cases in United fullest and additional to insure the cussion every stage Erickson, ex rel. Miner v. constitutional duty 1970) (dissenting opin- (8 proceedings. protecting That F.2d ion). the imposes upon re- the trial an intelli- accused is convinced fully un- gent, individual who educated Greene, DeMETRO, Loreen C. David W. charge, the elements Knock, Schecter, Joseph derstands R. Israel lawyer al., offense, Plaintiffs-Appellants, benefits et overall punish- provide the maximum can involved, then and be GINSBERG, Administrator, Mitchell I. accept ready then, should Human Resources Administration *13 City York, Goldberg, of counsel. of New waiver Jack Commissioner, Department of Social Supreme majority of Until City York, Services of of New Mario whether make clear chooses to Court Procaccino, Comptroller City of of counsel waiver formal York, Lindsay, Mayor New John V. my dis- needed, City York, City I shall continue to voice New and The York, Defendants-Appellees. based of New agreement of counsel as waiver proceedings. Von See abbreviated No. Docket 33917. Gillies, 332 U.S. v. Moltke Appeals, United States Court of the trial 92 L.Ed. Unless 309. Second Circuit. inquiry and penetrating conducts a court informs an accused examination Argued March the nature and elements him 22, 1970. Decided June charged, value as the as well crime innocence, defending counsel my judg- of counsel cannot waiver “intelligent” under act be an governing principles waiv- constitutional Zerbst, su- er, in Johnson v. discussed 391, 439, Fay Noia, pra, 372 U.S. (1963). 9 L.Ed.2d

83 S.Ct. right understanding fully

Without actuality waived,

being an accused is right

being Amendment denied his Sixth

to counsel. Goldberg in an- Mr. said

As Justice context:

other system preserving should worth

“No per- accused fear lawyer, he to consult with

mitted exercise, of, and become aware will rights.”

these accused’s

When law condones an

hurried, formal the basic

right represented and need to be case, a criminal acts than I

“fear” rather human concern. judgment of convic-

would reverse the on the basis of denial of due

tion

process under Fifth Amendment and under the

the denial of to counsel Amendment.

Sixth Illinois, 478, 490, 1758, 1764, 121 (1964). 2. Escobedo v. L.Ed.2d 977