Von Moltke v. Gillies

MOLTKE v. GILLIES, SUPERINTENDENT OF VON THE DETROIT HOUSE OF CORRECTION. January Argued 19, 1948. No. 73. November 1947 . Decided for filed a Field brief argued G. Leslie cause and petitioner. respond- for argued the cause Bernays

Frederick Wiener him Perl- brief were General ent. With Solicitor man, Monahan. Philip S. Erdahl R. Robert of the judgment announced the

Mr. Justice Black in opinion Douglas, and an which Court Justice Mr. Rutledge Murphy, Justice Mr. Justice Mr. concur. conspiracy to violate petitioner was indicted for specific charge Espionage of 1917.1 The Act aid the States

that, injure order the United conspired twenty-three others Reich, German she and vital and deliver the second War to collect during World agents. information to German military the benefit money lawyer no hire a and without With a federal district petitioner appeared before counsel explained him had been told the indictment judge, “right waived the signed paper stating that she her, cause,” the trial of this represented by to be counsel at she have Under her could pleaded guilty. and then more imprisonment to death or been sentenced jail follow- months thirty years. After thirteen than years four her to plea, the court sentenced ing prison. charged corpus proceeding this habeas she guilty,

sentence, resting solely it did on her 1 espionage. 34 32 crime of Section defines the substantive Section 217, conspiracies 32 to violate to be unlawful. 40 Stat. declares § 34. S. C. U. §§ First, alleged two reasons:

was invalid for coercion, intimida- by reason of the plea was entered of federal officers violation tion, deception Second, she process due of the Fifth Amendment. clause ben- understandingly neither waived the alleged that she provided with nor was efit of the advice Amend- required by of counsel as the Sixth assistance charges concedes, these entitle ment. the Government As and determined to have the issues heard and, true, in a if invali- corpus proceeding, habeas plea and The District Court heard date the sentence.2 offered and the Govern evidence both the prove and then found that she had failed to either ment, Supp. 72 F. 994. The Court contention. Sixth Circuit Appeals with one 161 F. affirmed, judge dissenting. 2d 113. designated undisputed

On the basis of what he as “the petitioner evidence,” dissenting judge concluded upon pleaded guilty legal because of her reliance Investigation (FBI) lawyer- advice of a Federal Bureau of agent, “was, honestly given, which advice false.” though majority Neither the District Court nor the Circuit Appeals dis- Court controverted this conclusion of the by A senting judge. challenge to a made indigent defendant, lawyer pro- for whom no has been in vided, ground on the that the was entered reliance given by government lawyer-agent, advice raises questions. serious constitutional Under these circum- granted stances we in certiorari this case. 331 U. S. 800. apparent

It thus becomes that determination of the questions presented depends upon what the evidence testimony showed. There was conflicting many points 2 Waley Johnston, 101; Johnston, v. 316 v. U. S. Walker 312 U. S. 275, 286; Zerbst, 458, 467; Large, Johnson v. 304 U. S. cf. Sunal v. 332 174, 177. U. S. attempt con- We do not to resolve these case. facts following Our conclusion is reached from

flicts. testimony government agents by shown petitioner. evidence offered undisputed country In that Germany. born in The was and her husband bore the title of countess. She 1926. December, Since came to the United States has they lived Detroit where have her husband an instructor in Ger- been a housewife and a naturalized Wayne University. Her husband is man at her own naturalization States; United citizen They for have four pending have some time. papers been country born in this children, of whom were three citizens. American FBI m., six 1943, 6 and 7 a. between

August was in bed. The petitioner their agents came to home. with them. get up go that she must She informed permission. husband’s with her home was searched FBI, fingerprinted, local office She was taken From physician. by a and examined photographed, Home, Immigration Detention taken to the there she was exception with one solitary confinement, and, placed permitted below, to see or communicate noted FBI agents Two days. next four anyone outside from courteously every day examined persistently but nothing knew p. until She 10 a. m. about 9 m. about being was except that she her arrest detention about dangerous a presidential warrant “as indefinitely held a FBI is an “that informed enemy alien.” She was an and as prosecuting, a and not investigating agency, attorney.” to see an I was not allowed enemy alien [she] only relaxation period questioning, this first During single permis- was a incommunicado status petitioner’s FBI through agent an relay instructions sion to nine-year- their how look after who was told husband mother for child, This whom old diabetic child. specially infancy, required since his a diet cared strict injections daily. twice

September 1, days early arrest, eight morning after petitioner Hearing taken Alien Enemy before any specific charges Board. She was not then informed of her, “repre- against but she was told that she could not legal attorney” hearing. sented at the The results hearing known were made to her. At its conclusion she was returned to the detention home.

September petitioner 18 the was handed the indict- against ment her. printed our record this document a little pages. covers more than fourteen It charges gen- erally, language statute, twenty-four of the that the conspired defendants to violate the statute. It also enu- alleged performed merates overt acts have been pursuance objects of the five which conspiracy, specifically acts petitioner. refer Four out of merely allege five “met and conferred with” one or more of defendants; the other fifth alleges that she “introduced” someone to one of the defendants.

September 21, almost a month arrest, after her a co-defendant, Mrs. Leonhardt, were taken to the courthouse for arraignment. Upon being told the two defendants had no attorney and no means to ob- tain one, judge appoint said he would counsel right away and would not arraign them until had seen an they attorney. “to They pen were then led the bull wait attorney.” any Before attorney they arrived were taken back into the courtroom. Court was in As session. explained by petitioner and corroborated others, “Judge Moinet bench, was on the and there seemed to be a trial going on, Judge appointed because Moinet lawyer in the said, courtroom. He ‘Come here, “so-and-so”, and help out,’ these two women and the young lawyer objected to that; he said he didn’t want to have to do with anything to arraignment, just But then he consented that. on the sitting were to us—we help and he came over out, plead?’ to you want me, asked ‘How do side bench —and he Leonhardt, and I he asked Mrs. said, guilty.’ ‘Not And whispered that, he So he told us thing. she said the same not would whispered that it it, he went over us, fact, to sug- he but why, I even now but do not know advisable, be two In this to mute.” proper it would be stand gested said (the lawyer whispered conversation to five minute both defendants minutes”) lawyer asked couple “a indi- They all about.” if “understood what was they this indictment, that did. did not even see cated He they to the nature petitioner did inform the not did defenses, and possible or as to her charge against her be punishment if knew the could inquire she The on trial alleged offense. case was imposed for the de- against was made interrupted, charge then plea of not was mute, stood and a fendants, who representation future With reference their entered. testimony uncontradicted attorney, petitioner’s an attorney appoint would judge “said he gentleman I was to away, and understood that right away.” come expected then bond, out on were women, get two unable Wayne from the courthouse immediately taken informed the jail. The matron there County Mrs. had orders to hold the strict or- Notwithstanding this “incommunicado.” Leonhardt and talk FBI to visit however, agents der, continued Behrens, defendant, Mrs. with both of them and third all three of period this day except Sunday. During every them- among allowed to read and discuss were them ar- which their newspaper reports unfavorable selves the They talked also rest and indictment occasioned. publicity FBI about adverse agents plead charges. about how should they von after Mrs. 25, day month and one September one to her. jail to the see arrest, lawyers Moltke’s two came ap- One of them They had sent her husband. been at language course pears to have taken the husband’s Wayne University. lawyers’ message the first These was to from permitted communication she had been receive county jail. She her husband since her removal had off from world she been so well shut the outside thought he did even know she was then con- where lawyers fined. These informed her that, although they had request, they rep- come at her husband’s would not Furthermore, they resent her as counsel. warned her they confidence, would not even what hold she said they and that would anything feel free disclose she told Only lawyers ap- them to the Government. one of the peared at the trial. He that the was testified during concerned their for her children and her hus- visit band, university $4,000 whom the had from removed his position the in- particularly after her arrest. day She quired help whether it would get husband to his uni- versity position back if pleaded guilty, but received subject way no In fact, one or another. lawyers emphasized they a number of times that could not and would not advise what she should do. Al- they though gave her form of regard- cross-examination ing charges against indictment, did not they attempt explain implications to her the of these charges, any or to advise her possible defenses to or to inform permissible her of them, punishments under the indictment.

September 28, days three after lawyers’ visit, the petitioner and Mrs. Leonhardt were taken FBI agents to the office they marshal’s where talked with the assistant attorney district about what they should enter. Mrs. Leonhardt there plead announced that she would guilty, which plea she later entered, but first opportunity discussing asked for the the matter al- office, to the her husband. He came marshal’s pen,” lowed to talk with wife the “bull and advised his lawyer. do anything her not to before she saw She plead guilty jail. then declined to and was taken back to days later, plead October nine she did without except having any lawyer the meantime talked FBI her husband agent-attorneys, although she seen 7th, A Mrs. days several more times. few before the a plea of and reached guilty, Behrens had entered rumors in the indict- the that other defendants named plead guilty. During ment would also the interval be- and September petitioner’s tween the 28th of FBI had October, on 7th of the men talked guilty the un- daily. particularly asked them whether her She a law would have the trial der United States she pleaded guilty. agent’s if all re- her co-defendants “that the the ply, it, question as he remembered up Attorney’s trial to the United Office.” would be States as to repeatedly plied agents questions She also the with in order to as much as what she should enter reduce what possible injurious publicity affair, of the possible harmful make it would be the least course to was also position. her husband to recover his old She deported, in she be vitally interested whether would be plead if did her sentence could whether, guilty, she All family. subjects agents of these served close to and one of daily talked over with her in their conversations assistant to, did, discuss them with the them offered discussion, this attorney Following district behalf. agent brought back word to the attorney deportation, could not control assistant district that if she publicity, place imprisonment, or the of her but controlling a pleaded guilty he would write letter to imprisoned authorities she be close and recommend that family. to her FBI of the lawyer-agents this time one of

About great her at problems with petitioner’s legal discussed the did his best testimony he According to his length. told this She indictment. implications explain while in had heard a statement she agent-attorney about would her husband jail pleaded guilty she unless He if were true. involved,- agent asked the this question. this She also replied that he could not answer whether mere association lawyer-agents asked one as that people with of a crime —such association five overt acts —was charged she was which under about her conviction bring sufficient itself according petitioner, This to the agent, the indictment. a “Rum the use of explained then the indictment example. testified that he said: plot Runners” as an She plan 'Rum’ who group people “That there is if per- law, person and another is there and the violate the people planning son doesn’t know the who are the viola- on, tion and doesn’t know what is but still it seemed going years plan out, after law the man two carried present person . who was becomes . . nevertheless is conspiracy. agent deny . . .” The FBI did not guilty given that he had rum runner illustration. In that it fact, agent quite possible was that said had conversation occurred.3

During days prior plea the ten to her guilty, peti- many tioner had FBI conversations with agents about plead how she should to the indictment. resolving her doubts she had legal no rely whom to

3“Q. you during And did that discussion use a illustration [sic] a rum ? about runner Well, say that,

“A. I heard Mrs. von Moltke did and since she trying recall, I have been and I cannot remember such an illustration.

“Q. I see. quite possible

“A. it is memory But von Mrs. Moltke’s mine, may better than and I have used such an illustration.” neither she since government lawyer-agents, except and the counsel lawyer, afford a nor her husband could Her chief appeared. never by Judge Moinet promised plead was guilty whether to trying to decide concern as was imprisonment; possible indictment, not concerned “She was government agents, testified hoping his and “she job,” husband and about her and her child.” best for her husband would be do whatever recognized by mind was state of That her troubled leading questions these attorney is shown prosecuting cross-examination: he asked her on you time up until isn’t it true that “Q. Now, agents asked the you repeatedly plead guilty plead guilty or you should whether advice true? not? Isn’t that I else could ask. nobody There was

“A.

“Q. Well, just say yes or no.

“A. Yes.” she decision, temporary reached having October 7, district assistant agents with two of the went plead guilty. him she wanted to attorney and told was taken available, she Moinet was not Judge Since the case. was unfamiliar judge another who before because accept guilty not At first he would him indi- before record lawyer, no and the then had she under pleaded previously that she cated judge’s to the response But the advice of counsel. indictment understood the questions, she said judge The guilty. voluntarily entering and was waiver a written sign permitted then dis- have been appears to whole matter counsel. during minutes within five questioning posed by routine explanation of any If in another trial. an interlude of consequences or of the indictment implications of the by anyone judge, or was then mentioned plea Nor is there does not show it. record presence, his 718 a of to she informed that sentence

anything indicate was judge imposed charges. could be under The death she was able appears not have asked whether why one, not or had lawyer, a she did want who hire given plea. Apparently in connection with her her advice petitioner’s only legal not he was informed FBI agents. come from worry about whether Petitioner continued thereafter wisely plea guilty. acted On changing she had January, agent from FBI that she learning 1944, plea, sent request permission could to withdraw the she attorney, seeking permis to the district such messages Judge appointed months later Moinet coun sion. Some for solely purpose filing sel for the motion leave to Counsel did file but plea. motion, withdraw such tardy4 Ap- Criminal required by its dismissal (4) Appeals Rules, September 1, Rule II the Criminal effective 1934, required days then such to be filed ten after motions within entry plea imposition of the before v. United sentence. Swift States, App. 387, 361; 2d 79 U. S. D. C. 148 F. see Hood v. United States, 431, 435; Achtner, v. 152 F. 2d United States 144 F. 2d 52. (d) It been liberalized Federal has since Rule of the Rules Procedure, 21, 1946. effective Criminal March Petitioner’s brief states that the court her motion to with- denied taking any testimony permitting plea draw the “without petitioner to take stand . . .” The has chal- . Government lenged nothing There that statement. the record which indicates judge any testify that the allowed witnesses to on the motion. Never- judge, theless the “after motion and of the consideration said arguments presented,” findings purported made of fact to the effect pleaded guilty she had “after due careful deliberation” “thoroughly that at the time entered she understood charge of the nature contained in the indictment.” Neither the majority minority opinion Appeals nor the of the Court of Circuit “findings” support referred these so-called as a denial guilty. Appeals motion to withdraw the Court of Circuit simply justified ground the denial the motion was filed “far too late.”

719 peals peti if when Rules, even motion had been made the Had motion to rights. learned of her tioner first court plea tardy, of not been guilty withdraw the light of required would been to consider it in the have States, in what this Court declared Kercheval United v. in guilty purpose 274 223: “A differs U. S. a an extra-judicial and from mere admission or con effect just a . . . Out of consid fession; it is itself conviction. crime, careful persons accused of courts are eration accepted made guilty that a shall be unless proper with full voluntarily after advice understand and 5 ing consequences.” of the be that some inference suggested It is adverse should to try to drawn because failed against following and appeal from conviction sentence appoint- motion. of her denial of her view counsel’s al- solely moving for “the that she purpose ment questionable it plea” guilty, to withdraw lowed from her prosecute appeal authority he whether appointed and sentence. At least conviction an appeal only lawyer peti- and he was the did not take Furthermore, futility appeal of an based tioner had. subject Orfield, Arrest same see Criminal Procedure from On this (1947) plea of Appeal at 300: is a confession “Since always great trial, open a waiver of it has been received with court and duty of to see that the defendant thor- caution. It is the the court receiving voluntarily oughly and acts before understands situation simple “Upon Blackstone, at *329: it.” also 4 Commentaries See nothing judg- confession, to do to award plain the court hath but receiving usually very recording such ; ment but it is backward gen- confession, subject; will to the life out tenderness indictment,” plead erally prisoner retract it and to the advise the England Commentaries on the Constitutional Law Bowyer, (1846) 355: “The civil will not allow a man to be convicted at law guilt, confession, his because his not corroborated evidence of bare may may which induce an innocent man there be circumstances himself.” accuse withdrawal permit refusal

upon the trial court’s to meet the of her failure obvious, view plea pretty plain (4). II It seems of Rule requirements strict only question here has raised corpus proceedings. way by habeas proper — peti- that contention accept government’s We not It is woman. mentally acute intelligent, tioner is whether, the Government as necessary now to determine rejected have reasonably might District Court argues, the pass upon need we testimony. Nor petitioner’s much might evidence that contention government’s did lawyer-agent FBI a finding supported have as- that mere advice actually give not her the erroneous in and conspirators was with criminal sufficient sociation conspiracy. of criminal person guilty of itself to make two latter conten- of the For, assuming the correctness testimony undisputed that the tions, opinion we are that when summarized shows previously understanding full have that she did not pleaded guilty, ato rights indispensable legal of her comprehension of counsel. waiver of the assistance valid that an ac guarantees First. The Sixth Amendment lawyer, provided shall be with cused, unable to hire a his in all criminal of counsel for defense assistance v. Johns in the federal courts. Walker prosecutions Illinois, 134, ton, 286; see v. 332 U. S. U. S. Foster 312 particularly solicitous This Court has been 136-137. carefully preserved where right was see kept was under uneducated, was ignorant accused widespread surveillance, object and was the close Alabama, v. U. S. 45. public hostility. Powell it all bristled with factors that made petitioner’s case a waiver that, accepting essential before the more satisfied counsel, the court be her constitutional We comprehended perilous position. fully that she had a Ger- Germany. total war with She waging were man was a had been a German name. She German. She atmosphere The war at countess. saturated suspicion and fear The indict- time with a of Germans. country ment was at war with charged that while this Japan conspired had Germany military Germany. secrets to She betray others to our kept had been in close since her arrest. confinement alleged co-conspirators already pleaded Many of her guilty. guilty, been, many If found she could have people put think might been, legally should have punishment Espionage death as for violation of the imprisoned If executed, Act. she could have been. judge thirty years period or for such shorter the trial court might his discretion fix. Even when impose petitioner following was about on this sentence guilty, lawyer might have rendered any invaluable aid in attention miti- calling to the court’s him.to fix have inclined a gating might circumstances charged espionage for with lighter penalty Anyone her. sorely in question under statute would have wartime Moltke, particular, desper- a von lawyer; needed Mrs. get. the best she could ately needed right A to the as- Second. waiver the constitutional who is of no less moment to accused sistance counsel plead to an accused guilty must whether to than decide Kaiser, 471, trial. See Williams v. 323 U. S. who stands upon his rely trial an accused is entitled to 475. Prior to facts, independent examination of the counsel to make an and circumstances, pleadings and laws involved then to what should be en- opinion his informed as offer inno- Determining whether an accused is tered. complex legal in a indictment seldom charges of the cent easy layman, though acutely for a even simple a and task Conspiracy charges frequently are of broad intelligent. scope, particularly and that true of con- confusing v. Espionage See, g., Act. e. Gorin spiracies under the 722 Heine, v. 151 F. States, 19; 312 United States U. S.

United layman are the misleading 2d And especially 813. are conspiracy. charges Such allegations of a overt act past indictment, statements of in this mere often, as persons, which or conferences with other associations alone. entirely standing harmless apparently are activities of this indictment layman reading charges A act the overt under reasonably think that one be convicted might could perfect inno had, simply because he indictment place criminal at the time cence, associated with some peti alleged. undisputed evidence this case ques many legal about of these tioner was concerned charges, overt act significance tions —such as the' of the all her of defense should bo-defend possibilities aid guilty emphasizes ants plead need — stage. counsel at this duty judge It is the a federal before

Third. solemn make a appears whom a defendant without counsel to steps take all insure thorough inquiry necessary and to every protection the fullest of this constitutional at Zerbst, v. U. S. stage proceedings. Johnson Olson, v. 458, 271, duty Hawk S. 278. This 463; U. though proce were a discharged cannot be it mere Alabama, formality. v. dural Powell 287 U. S. court, trial appointing particularly instead duty specific representing with the the defend charged ants, local appointed entire bar. Court treated This designation gesture, such a cavalier of counsel as mere compliance it recognize declined as a constitutional mandate relied that It case. appointment that the light this we view of counsel petitioner arraigned. lawyer, for she was when This apparently accept all, agreed to the case at reluctant promised by to represent only judge when that it or minutes only perform would take two three to his And it have no Even duty. seems to taken longer.

723 very best attorney did the we assume that this though accept we this circumstances, cannot he could under the anything as by of counsel the trial court designation constitutionally re- to his more than token obedience Arraign- petitioner. for quired duty appoint to counsel proceeding a in a important step criminal ment is too charged give wholly inadequate representation one such with mandate compliance crime. hollow arraign- stage important at a as the Constitution so peti- like might enough ment in itself to convince one be in an American never foot tioner, previously who set no right a waiver to counsel was courtroom, that of this are un- formality. great just legalistic another We loss— agree argument with the government’s able lawyer arraignment for appointment momentary in- contention that purposes supports the court right fact, waived her counsel. telligently direction, judge then episode points the other lawyer another appoint told the he would long until after away” for he never did “right her —which pleaded any good. late to do her she had too guilty, right of Fourth. We have said: constitutional “The represented invokes, an accused to court, in the ac of a trial which itself, protection life stake —is without coun liberty cused—whose at serious and protecting duty imposes This sel. determining judge the trial responsibility weighty competent waiver intelligent there is an whether 6 duty light discharge properly To accused.” constitu presumption against waiver strong long as counsel,7 judge investigate must tional before of the case thoroughly as circumstances v. 465; see v. 304 U. S. also Zerbst, Adams United Johnson 269, 270. 317 U. S. McCann, rel. ex States 458, 464; States, v. v. 304 U. S. Zerbst, Glasser United Johnson 60, 70. 315 U. S. him may

him an tell demand. The fact that accused right informed of to counsel and desires to waive he is his respon- automatically judge’s this does not end the with sibility. To be valid such waiver must be made apprehension charges, statutory of the nature pun- within them, range offenses included allowable thereunder, possible charges defenses ishments in mitigation thereof, circumstances and all other facts essential broad understanding the whole matter. A that an judge can make certain professed accused’s waiver of understanding^ wisely counsel is made only from a penetrating comprehensive examination of all a plea circumstances under which such is tendered.

This case graphically illustrates that a mere routine inquiry asking of questions several followed standard —the signing standard written waiver of counsel— may judge leave a entirely unaware facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel. And this case shows inquiries that such routine may inadequate although the Constitution “does require that under all cir upon cumstances counsel be forced a defendant.” Car Illinois, ter v. 329 U. S. 174-175. For the record demonstrates that welcomed legal aid from possible sources; all there would have been no necessity forcing counsel on her. Twice the court did designate petitioner. counsel for upon The first arraignment. occasion was Petitioner appears willingly cooperated appointed to have with this counsel for the two or three he was minutes called to act. The second occasion was when was counsel named purpose for the sole withdraw her moving to plea of first guilty. Notwithstanding her unfortunate encounter court-appointed despite fact designated that counsel was not time second until it obviously too late submit months complaint no rules, is procedural motion under there the And cooperate with him. that failed to the witnesses that many from the is filled with evidence record all of legal advice from petitioner persistently sought the to permitted people number she was very the limited of before period the of her close incarceration during see from apparent It is the record guilty was entered. deviation plead slightest that when she did have revealed procedure from court’s routine would testimony petitioner’s doubt. For perplexity the existence points unerringly to of all the witnesses obviously just below the sur- uncertainty which was to judge. petitioner’s face of the statements by the Constitu guaranteed The to right counsel Fifth. attorney devoted of an contemplates tion the services v. United of his Glasser client. solely to interests peti guilty this States, pleading 70. 60, 315 U. S. Before about the advice counsel received undoubtedly tioner in a questions involved her, legal against indictment concerning her it, many other matters under trial repre government from solely came This counsel case. lawyers. whom were record sentatives, The some uniformly courteous were representatives these shows they no indication that ever although her, there the course dictated their in the from slightest deviated course agents. as its loyalty to Government appears have agents, she with these association of their evi Some great a confidence them. developed confidence her.8 indicates like dence prisoners contemplate does not Constitution legal agents dependent government shall be and able those aid, counsel and however conscientious de- faithful, allegiance and agents may Undivided be. Ameri- prized voted are traditions service client supra. See note Sixth for which the It is this kind service lawyer.9 can serv And is this nowhere provision. Amendment makes appointment honorable than case ice deemed more even lawyer, hire a poor too represent an accused unpopular member of an may be a though the accused offense which with an may charged hated or group, peculiarly abhorrent. a hold- support circumstances here cannot The admitted understandingly intelligently and ing that to counsel She was entitled waived her to counsel. She agents. Government given other than that liberty her life or her before is still entitled to from her. can be taken of Mr. Justice represents the views

What has been said and Murphy, Douglas, Black, Mr. Justice Mr. Justice Rutledge. therefore reverse would They Mr. Justice Appeals, the Circuit Court of set aside judgment of the direct that of the District Court prior judgment the and fur- prayer for release from grant petitioner’s court to the imprisonment judgment under the on her ther based and Mr. Justice guilty. of Mr. Frankfurter Justice in a separate opinion, for the reasons stated Jackson, judgment Appeals that Circuit Court of agree Association, American Bar Canons Professional and Judicial lawyer Ethics, owes to the interest Canon 15: “The 'entire devotion client, rights in the maintenance defense of his of the warm zeal and learning ability,’ and the exertion of his utmost and to the end that nothing him, by law, or from be taken be withheld save rules of judicial legally applied. public unpopularity fear of No disfavor discharge duty. restrain him from the full of his In the should judicial any every forum the client is entitled to the benefit and remedy land, and defense that is authorized the law of the and may expect lawyer every remedy he his to assert such or defense.” lawyer assigned indigent prisoner

Canon 4: “A for an ought any not to ask reason, to be excused for trivial and should always exert his best efforts in his behalf.” prior and Court’s reversed, District should be opinion aside, they but are judgment should be set Court District that, judgment, its setting after aside on, the explicit findings consider, should further and make separate opinion. in the questions of fact discussed Appeals re- judgment The of the Circuit Court The Court set aside. versed District hold may that it Court so cause is remanded to District and make hearings give to, further consideration in the findings questions fact discussed explicit on, hearings If further separate opinion. such District Court finds that consideration the under- full competently, intelligently, did her. implications, waive constitutional standing of counsel, directing order be entered an should right to custody the judgment under from further released plea. on her based

It is so ordered. opinion of Mr. Separate Frankfurter, Justice joins. which Mr. Justice Jackson disposition of case turns for me appropriate advised petitioner’s allegation that she was truth who case, in the that one B. I. active agent, F. persons who innocently, with merely associated, however conspiracy equally guilty. to a parties criminal were a of person no with intellectual doubt, We are dealing, for an indeed, But it would even very acuteness. be rare, understanding layman to extremely intelligent have what calculated decide course was best necessary in participation when charged her interests serve of charge too which a easy a The abuses to conspiracy. animad- may put weighty be have occasioned conspiracy Re- Judges. the Conference of Senior Circuit by version 728 and see also

port Attorney General, 1925, pp. 5-6; United States Hand in Judge of Learned the observations Falcone, in 311 581; v. F. 2d affirmed U. S. 205. 579, charge The of a of subtleties refined distinctions which may give deci rise are reflected Court’s conspiracy this g., States, e. Kotteakos United v. S. See, sions. U. 750. Because of its law of criminal complexity, it of conspiracy, unfolded, as has is more difficult com prehension by laity than that which defines other of of types Thus, may peti have been true crimes. tioner, might a conspir accused the net of found by acy others, the relation of acts to reason her acts of significance of may which she not have appreciated, may which result from application of criteria than more delicate which guilt those determine as to the Accordingly, usual substantive if an F. offenses. B. I. a agent, acting as member gave her, prosecution, however legal honestly, erroneous advice1 which clearly might well have induced to believe that she was guilty under expounded the law as one who for her represented the Government, person petitioner’s might situation well thought have a defense futile and mercy hope. the court her might best Such have been her conclusion, however may innocent she have deemed herself be. I could regard guilty under circumstances, made such made without either the advice of exclusively representing or after a searching inquiry the court into under- 1 This precise testimony: is the group “That if there is a people plan law, a ‘Rum’ person who violate the and another is person there and the people planning doesn’t know the who are violation and going doesn’t on, know what is but still it seemed after years plan two out, is present carried in the law the man who was person becomes . . . conspiracy.” nevertheless law, course, Falcone, precisely United contrary. States to the v. 311 U. S. 210. on the made having been lay it, behind

standing choice. informed, self-determined necessary of basis a free and “in exercise of an accused Of course of approval the considered choice, and with intelligent intelligently competently . may . . . . . the court guaranteed assistance of his to the waive” States ex v. United Amendment. Adams by the Sixth v. United Patton McCann, 269, 275; and rel. 317 U. S. see Zerbst, S. States, and Johnson v. 304 U. S.U. an make capacity to must be both 458. There subverting fac- absence understanding choice responsible. free and clearly choice is tors so mis- by by duress or beclouded, If whether the choice a member honestly offered advice, however leading more without plea guilty accepted prosecution, called hardly can be what record discloses than fair to the put feeling the inner of innocence a refusal to of conse- awareness intelligent law with test of the had admitted agent if the F. I. Therefore, B. quences. her, his advice petitioner accurately stated testimony had if Court a conflict the District petitioner, lay with the memory found that or truth that the circumstances escape I the conclusion could not accepted was plea guilty petitioner’s under which enun- heretofore up safeguards to the did not measure guilty, accepting this Court ciated at hazard. of death was especially where a sentence I tell it, however, cannot as we have On the record colored if would have which, given, whether advice If the unre- actually given. with the to me spoke cold record vealing words I brethren, should they four of clarity convey my which Conversely, discharged. must be agree that find- conveyed opinion to me the if the District Court’s I brethren, too would it other ings my which radiates affirmed. the judgment conclude that should 730 a firm not me basis

Unfortunately, give the record does F. B. I. the crucial issue of the judgment regarding disputed agent’s petitioner. advice to the It not did talk her and agent, lawyer, who was also a with ad legal did discuss issues with her. But he neither of his discus whether, mitted nor denied the course hardly law so as her, expounded sions with he under a view escape, leave her however innocent correct did may suggest of the law she have been. He not even though remember, that even he did not he was confident that he the kind of given misleading could have legal contrary, information she attributed to him. On the he added that von Moltke’s quite possible “it that Mrs. memory than page, is better mine.” From the dead testimony, connection the rest of the agent’s suggests scrupulous witness. But I recreate cannot now his gloss personality puts tone voice or the speech. Therefore I am unable to determine whether the pleaded guilty palpably reliance on the lawyer-agent who, erroneous advice of an F. B. I. as the symbol prosecution, peti owed it to an accused position tioner’s her accurate if he give guidance, gave any. Judge’s opinion

Nor does the District resolve these for me. difficulties From what he wrote it would be the guessing rejected petition- most tenuous whether he er’s account of the F. agent’s counselling B. I. or whether he did not attach to that issue the legal significance which

2“Q. you agent] during And did F. B. I. that discussion use [the illustration about a rum runner? [sic] Well, say that, “A. I heard Mrs. von Moltke and since she did I trying recall, have been and I cannot remember such an illustration.

“Q. I see. quite possible memory

“A. But it is that Mrs. von Moltke’s is better mine, may than and I have used such an illustration.” neither re controlling.3 I deem Since the record affords what finding nor Court’s solving evidence the District controlling importance, I deem to circumstance for fur I would the cause back to the District Court send specific finding of fact proceedings ther with a view a between and the regarding the conversation F. B. I. with as close a recreation of the incident agent, possible. is now with Burton, whom The Justice Justice Chief

Mr. concur, dissenting. Reed Justice Mr. in largely As the this case are factual and deal issues force credibility witnesses, binding with the the precedent However, guard this as a is narrow. decision its dis- influence, undue extension of a recorded against justified. sent seems

The does not the release the Government contest establishes, fact, that petitioner if she as a matter of guilty long unequivocal plea either her considered and charges Judge abandonment of the that The District indicated Investigation “agents mislead of the Federal Bureau of [sic] the degree, that, least some promises her or made to her which at [in] “for guilty charge,” in but pleading influenced to the her action vigorously that there was purpose of “most the record” he stated charges impli- testimony sustaining or absolutely nothing in such record, appear, that it does from the cations.” While charge coercion, nothing to buttress there is abandoned her charge been misled suggestion that she had she abandoned the referring to statement as by agent, I read the therefore The by petitioner. promises or confession threats to induce view the in his Judge gave no intimation whatever that District could other plea with all the circumstances connection tendered, in fact it was intelligently if to have not be deemed been law, as asserted agent's exposition of the influenced the F. B. I. although suggestion petitioner. by the Nowhere is there a say memory of the interview agent prepared her was not rejected incorrect, Judge her account. false District original against her for violation of the proceedings Espionage clearly Act or her written and otherwise stated in- proceedings freely, waiver of counsel in those was not vig- telligently knowingly made. The Government orously proceeding contends that has failed to establish either of facts. agree those We and, Government. She has failed to do so having so failed, printed she is not entitled to release. record The require does not judgment. reversal of the The uniform findings against of fact judges three trial who by the separately saw and amply heard her are sustainable. of guilty made and filed her open waiver of counsel in Judge court before District Arthur F. Lederle on October November, 1943. 1944, after consideration and denial of her motion for leave to withdraw guilty, she was sentenced Judge Edward J. District Moinet. She has made no direct attack on judgment against her. Accordingly, before considering exceptional proof burden of which she must making bear collateral attack judgment than a year more after it entered, was it well to process examine the of law which up led to this judgment.

At arraignment, her September 21, before Dis- 1943, Judge trict Moinet, Edward J. assigned she was counsel to during assist her arraignment. Such counsel ad- vised her to stand mute. She did so. This pre- conduct rights served her full prejudiced it not posi- has her A plea tion. guilty not was entered for her. This left her to free stand it or change to 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 assign would counsel to In assist her. fact that, she testified after the arraignment, “Judge Moinet said he would appoint an I attorney right gentle- away, understood away.” to re- expected man to be come This was period arraignment. to her after ferred contact with the attitude of addition to this frequently discussed subject counsel, court on the had He himself subject of with husband. lawyer with two She talked legal some education. also friends, who see her as of her husband came to friends professionally. not She likewise discussed although representatives on occasions with the situation many occasionally Investigation Bureau of the Federal Attorney. re- She representatives of the United States anything not to do peatedly urged husband On attorney. with an the basis until she consulted Septem- advice, plead she decided although other defendants the same ber several She about proceeding had done so. testified follows her decision advice about her husband’s 28: September

“Q. get lawyer? you He told be- [plead guilty] I Yes; “A. should not he said I question I an on such have attorney; fore seen about the whole attorney talk first should thing.

“A. lawyer until a comes My husband said wait out. because plead guilty

“Q. And decided not to you that? that, yes.” “A. Because plead finally determined days later she

Several waived expressly 7, 1943, she On October guilty. this writing. As court and counsel, open both asked on the stand: she later was

“Q. So, during you the week disregard decided to the advice that your given you? husband had Yes,

“A. sir. “Q. You that decision; yes made or no? “A. Yes.”

In words, other she her situation to her discussed own point satisfaction to the where she had reached plea conclusion both as of guilty and as to her wish to waive counsel. There is no constitutional provision that required permitted or be thrust against her wishes. She had a right to decide she did want to discuss her case anyone. further with The issue was not then and not now whether might have been benefited having counsel. She was an mentally woman” “intelligent, and, acute for reasons of her own, she up made her mind plead that she wished to to waive If counsel. she did freely, intel- ligently and knowingly, that was her and that action should final, subject only to motion to with- plea draw her in regular process course due of law appeal from judgment plea. rendered on her Under the rules of any plea withdrawal of her court, had to be made within days ten after of such entry and before imposed. sentence was Rules for Criminal II Appeals, Rule (4), S. 662. U. This was not done. Judge Lederle, to guard against any misunderstanding, 7, 1943, specially October if inquired she desired the assistance of counsel. negative. She answered He inquired then to what was. She answered guilty. addition, she submitted a written waiver of counsel. The court then sentence and deferred referred case to the United States Probation Officer for inves- tigation report. Ample time was taken for this. Moinet Judge taken before June, 1944, she was had She originally arraigned. she been before whom plea. change then advised him that she wished to repre- she was entitled to judge informed ought make attorney counsel and that an sentation plea that, permission to withdraw her a motion appoint as he would preference counsel, if she a The matter appoint. such as she desired him to counsel counsel. abeyance was left in while she tried select 3, Judge Moinet, advising she wrote to July On preference and court soon there- him that she had no making her purpose for the appointed after counsel The assistance rendered such motion. merely a Judge He from Moinet not

criticized. secured the untimeliness ruling upon procedural point as to findings bearing her motion, specific but also about by Judge Moinet, its merits. This order made him, arraignment significant before year after to the issue now before because of its direct relation His read follows: the Court. order upon the hearing on for having “This cause come von defendant Grafin Marianna motion of the guilty, for leave to withdraw her Moltke entered, for leave to enter heretofore herein, filed Guilty to the indictment Not submitted, having after been hearing, matter said motion after Court, consideration respective behalf of presented on arguments parties specifically finds: hereto, von Marianna

“1. That the defendant Grafin her constitutional properly Moltke was advised of Court, prior the time by the both at rights indictment; plea Guilty entered her to the weeks plea Guilty, That the entered several “2. arraign- of the indictment and her filing after the thereon, ment was submitted after due and careful ; deliberation

“3. That defendant was advised of and thor- oughly understood the nature of the charge contained in the indictment filed in this cause; promises

“4. That no or inducements or threats purpose were made for obtaining plea the of the of Guilty, and that entry plea Guilty the of the of any misrepresentations not due to ; “5. That praying the motion for leave to withdraw Guilty the of period was not filed within the by (4) adopted fixed Rule II by Supreme Court of the United States of America;

“Wherefore, It Is Ordered that the said motion to withdraw the of guilty entered the defendant Graffin Marianna in von Moltke the above [Grafin] cause, entitled be and the same hereby denied.” This was in November, 1944. Judge Moinet asked the defendant whether she had anything say why judg- ment pronounced not be against her, should and, no suffi- cient reason to the contrary being appearing shown or to the judge, he imprisonment sentenced her to for four years. She began serving her However, sentence. after a determination had been made by the Government 1945, looking toward her removal repatriation to Ger- many, she, 1946, petition filed a for habeas mak- corpus ing present collateral attack on original proceed- ings. We, therefore, are asked to review here the factual findings of the District Court April, made in 1946, through Judge District Ernest A. O’Brien in this corpus habeas proceeding and, by way of collateral to review the attack, action of the same District Court, taken the original proceeding through Judge in October, Lederle 1943, and through Judge Moinet November, 1944. While such proceedings by habeas corpus, based constitutional vital grounds, are preservation of individual rights, making, against process our judicial protection process is unjustified upon such in this attacks way, rights preservation important to the equally attack for the attempted calls a whole. Each people as made, but also only of the weighing not claims careful claim. proof to sustain each submitted delib- unappealed and collaterally the attacking In now heavy burden judicial proceedings 1944, erate invalidity to establish the proof rests presump- plea and waiver. The essential original of her judicial proceedings which regularity tion attaches Zerbst, 304 v. rebutted. Johnson lightly Olson, Hawk v. 326 U. S. 458, 468-469; S.U. pre strength of this Judge recognized 279. O’Brien be borne sumption heavy proof and the burden of hearings at He held extended petitioner. therefore many appeared as wit petitioner which and others the showing a substantial The evidence included nesses. plea of petitioner’s the judge accepting that the trial only done after original had so proceeding in the guilty plea the himself, by questioning, careful satisfying with that, and promises result threats or was not the of petitioner counsel, her the knowledge of At of right.1 waived that conclusion voluntarily only peti Judge O’Brien found hearings these upon her, resting the burden tioner had failed sustain weight overwhelming of the evidence these but that the against was her. proceedings corpus trial in the habeas judge

His as the statement weight impressive and proceedings great entitled here: petition petitioner

“In the cause the filed directly charges or the District by implication McCann, 276- 1 See Adams v. United ex rel. U. S. States 277. having charge agents case of the

Attorney Federal Bureau Investigation of mislead [misled] promises or made to her that which at least [in] degree, some in pleading influenced action guilty charge. I am opinion charges of the that these have now been petitioner abandoned but purposes of the I record wish to vigor- state most ously that there was absolutely nothing in the testi- mony sustaining charges implications. such conduct both Attorney’s of officials the District office and agents of the Federal Bureau of Inves- tigation were in safeguarding rights meticulous petitioner and that the record utterly bare any support petitioner’s contentions. is a

“The obviously good woman edu- cation average above the in intelligence. Her knowledge English fluent and ample. She had was people discussed case various plea before the was fact, entered. at her own request, had a she conference with the chief assistant district attorney wherein she endeavored to from him secure promises of some an in- leniency convenience as ducement to a guilty. These advancements petitioner were, repudiated of course, by the attorney district of the officials informed who had jurisdiction over the matter in advent [the of her of guilty. event] “The chief contention of the was that waiver of her competently counsel was not and intelligently made. The was taken before Judge Arthur Lederle of this District. The evidence Judge inquired showed the if of her she under- charges stood the made in the an- indictment. She in swered the Judge affirmative. if inquired The she desired the assistance of in counsel. She answered what was inquired then Judge The negative. the to this addition guilty. She plea. her answered did a that she stating waiver signed submitted she not desire counsel. is case only question

“The substantial knowingly petitioner intelligently the whether obliga- It rights. was her waived her constitutional petition allegations by tion to sustain the failed only Not preponderance evidence. has I this, but believe that the evidence is overwhelm- an is petitioner The against her contentions. ing understood woman. She intelligent, mentally acute intelli- freely, charge proceedings. She knowingly waived constitutional gently therefore, I no merit conclude, there rights. petition together that it be dismissed shall Supp. 994, 995, the writ.” F. [72 997.] Appeals judgment Circuit Court of affirmed corpus. dismissing petition for the writ habeas are called brought That now here and we judgment to make further of the factual conclusions review corpus proceedings. Court in habeas the District for equal of law an us process regard Due calls the interests the Government and possible approximation to the truth. seeking the nearest On the printed have record here. Necessarily only we issues, heard hand, the trial faced the same judge, other in- spoken original we He saw the the words now read. now reproduced. that we see He observed struments expressions and of the other conduct and independ- we cannot informed whereas make witnesses expressions. From conjecture ent as to such conduct he the factual issues overwhelm- living record found petitioner. ingly against

740

There is nothing printed record sufficient to that, convince us if we had seen the witnesses and heard testimony, would we not have reached con- the same clusion. anything Much less is there in it that convinces that, us not having made, justified seen or heard it we are in reversing his findings which were based than more can be before Under us. we believe circumstances, that the truth is nearly approximated justice more is surely more reading printed served record strong light of trial judge’s factual than by conclusions attempting 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 ascer- tainment of the truth to be derived from the trial court’s impartial observation of the witnesses should not be dissi- pated in process appraisal review. His more, living record entitled to proportionately rather than less, reliance the further the reviewing court re moved from the scene of the trial. See Co District of Pace, lumbia v. 320 U. S. 701; United States v. Johnson, 319 503, 518; U. S. Mfg. Williams Co. v. United Shoe Machinery Corp., 316 S. 364, 367; Delaney U. v. United States, S. 586, 589-590. U.

Her status as an enemy alien not, does affect itself, her right to informed character of her and her waiver counsel. The fact that charge against her Espionage was under the Act and there- fore carried technical possibility of penalty the death did not at any time introduce a practical consideration that danger actual of suffering capital punishment. She forecast accurately general character of her sen- tence and was concerned primarily with the wish that her be served family. sentence near her An assistant district attorney stated that he would write letter recommend- ing imprisoned that she be close her family. define to difficult conspiracy exceptionally is While nothing there complexities, all and factual legal its in- freely, from an prevents accused that Constitution that, to to knowingly choosing plead telligently and known for reasons best complex charges, other as well as to on trial accused, standing to as alternative Having positively right. was her thus charge. This require did not to stand trial she decided not and knowingly waive freely, intelligently in order counsel. prin- fundamental Bill of Constitution, Rights

Our sympathetic ciples call for careful government process guaranteed of the due law observance like the enemy aliens persons, including all accused also adopted petitioner. Constitution, however, tranquility, insure domestic justice, in order to establish blessings and secure general welfare promote To as whole. States liberty people United sympa- important to review it is end, equally judicial process constitution- understanding thetic majority of While administered our courts. ally judgment below ready are affirm the this Court case to remand stands, it their decision the record as mean that established findings does not for further validity of favor salutary general presumptions of a trial conclu- favor court’s judicial proceedings to be relaxed. credibility witnesses are as to the sions

Case Details

Case Name: Von Moltke v. Gillies

Court Name: Supreme Court of the United States

Date Published: Jan 19, 1948

Citation: 332 U.S. 708

Docket Number: 73

Court Abbreviation: SCOTUS