McGarrah v Dutton Brief for Appellant

    f f

IN FORMA PAUPERIS 

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 25925

L. C. McGARRAH,
Appellant,

v.
A. L. DUTTON, Warden, Georgia State Prison, 
Reidsville, Georgia,

Appellee.

Appeal from the United States District Court 
for the Southern District of Georgia

BRIEF FOR APPELLANT

JACK GREENBERG CHARLES STEPHEN RALSTON 
10 Columbus Circle 
New York, New York 10019

C. B. KINGP.O. Box 1024 
Albany, Georgia

Attorneys for Appellant



F r

I N D E X
Page

Statement of the Case----------- ----------------------1
Specifications of Error------ ------------------------13
ARGUMENT

I. AT THE HEARING ON REMAND THE STATE FAILED TO 
CARRY THE BURDEN OF PROOF IMPOSED UPON IT 
BY THIS COURT-----------------------------------14

II. THE EVIDENCE BELOW SHOWED THAT THE PLEAS OF 
GUILTY WERE ENTERED BECAUSE OF COERCION BY 
VIOLENCE OR THREATS ON THE PART OF STATE 
OFFICIALS---------------------------------------22

III. APPELLANT WAS DENIED THE RIGHT TO A PUBLICTRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT- 23
CONCLUSION---------------------------------------------26
Certificate of Service--- ----------------- --------—  27

TABLE OF CASES

Berryhill v. Page, 349 F.2d 984 (10th Cir. 1965)— — 16, 20
Burgett v. Texas, 389 U.S. 109 (1967) ---------------  17
Carnley v. Cochran, 369 U.S. 506 (1962)---------- - 15, 19
Davis v. North Carolina, 384 U.S. 737 (1966) ------ --- 22
Day v. United States, 357 F.2d 907 (7th Cir. 1966)----  16
Glasser v. United States, 315 U.S. 60 (1942) ------- —  16
Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965)---  20
Johnson v. Zerbst, 304 U.S. 458 (1938) ---------------  24
Lastinger v. United States, 356 F.2d 104 (5th Cir. 1966) 5
McGarrah v. Dutton, 381 F.2d 161(5th Cir. 1967) --------------------  1, 3, 14, 19, 22
Molignaro v. Dutton, 373 F.2d 729 (5th Cir. 1967) 5



Page
Moore v. Michigan, 355 U.S. 155 (1951) ----- -------— “ 22
Palumbo v. New Jersey, 334 F.2d 524 (3rd Cir. 1964)— —  16
People v, Hancasky, 410 111, 148, 101 N.E.2d 575

(1951) ---------------------------------------------25
People v, Simmons, 285 App. Div, 470, 138 N.Y.S.2d 97

(1955) --------------------------------------------- 25
Re Oliver, 333 U.S. 257 (1948) ---------------  23, 24, 26
Sandoval v. Tinsley, 338 F.2d 48 (10th Cir. 1964)-----  20
Shawan v. Cox, 350 F.2d 909 (10th Cir. 1965)— -- -—  16, 20
Williams v. Babineaux, 357 F.2d 481 (5th Cir. 1966)—  20



IN FORMA PAUPERIS

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 25925

L. C. McGARRAH,
Appellant,

v.
A. L. DUTTON, Warden, 
Georgia State Prison, 
Reidsville, Georgia

Appellee.

Appeal from the United States District Court 
for the Southern District of Georgia

BRIEF FOR APPELLANT 

Statement of the Case

This is an appeal from an order of united States District 
Judge Frank M. Scarlett denying appellant's petition for writ of 
habeas corpus for the second time and remanding the petitioner 
to the custody of the appellee warden.

The pertinent facts surrounding the convictions of the 
appellant are set out in the prior opinion of this Court, McGarrah 
v. Dutton, 381 F.2d 161 (5th Cir. 1967). They can be summarized 
as follows: On July 26, 1955, appellant, who was unrepresented
by counsel, waived indictment and trial by jury and pleaded guilty



in the Superior Court of Sumter County, Georgia, to two counts 
of assault with intent to commit rape and three counts of bur­
glary. He was given the maximum sentence on all five counts, 
viz., 20 years each for the first two counts and ten years each 
on the remaining counts. The sentences were to be served con­
secutively for a total of 70 years. At the time he entered his 
pleas, appellant was 17 years old, illiterate (with two years of 
education (R. 47)), and an indigent.

On January 18, 1965, he filed a petition pro se for a writ 
of habeas corpus in the City Court of Reidsville, Georgia, 
asserting that the waiver and pleas had been obtained by threat 
and force on the part of state officials and that his federal 
right to assistance of counsel and the right to a public trial 
had been denied. The petition was denied on March 27, 1965 
and no appeal was taken.

On March 10, 1966, the present petition for a writ of 
habeas corpus, asserting the same grounds, was filed in the 
United States District Court for the Southern District of Georgia. 
After a hearing, relief was denied on August 4, 1966, and the case 
was appealed to this Court.

On July 26, 1967, the decision of the district court was 
reversed and the cause was remanded with direction to hold a 
further factual hearing for "development of specific facts" 
by the state "to substantiate a knowing waiver [of the right 
to counsel] . . .  by evidence which is not so deficient in form

1/ Appellee has waived any possible objection to failure to 
exhaust state remedies. 381 F.2d 161, 165-66.

2



that there is doubt as to whether constitutional requirements
have been observed." McGarrah v. Dutton, 381 F.2d 161, 165 
(5th Cir. 1967). Because of its remand on the issue of waiver 
of the right to counsel, this Court did not consider the other 
contentions raised of McGarrah that his plea of guilty was 
obtained by coercion and that he had been denied his right to a 
public trial.

At the hearing on remand the state introduced further
evidence. In an order and judgment dated December 29, 1967,
and filed January 2, 1968, the district court again denied the
writ (R. 171-174). The court relied on two items of evidence:
(1) the record of two pleas of guilty entered by the appellant
in the same state court one year earlier (see, defendant's
exhibit 1, introduced in the court below)y and (2) the testimony
of a former agent of the Georgia Bureau of Investigation as to
his recollection of a general practice of appointing an attorney
to confer with a young offender before a plea of guilty was
entered. The court conluded that this provided evidence:

from which the inference may be drawn that 
the Petitioner was acquainted with the court 
procedures involved in criminal cases due to 
the fact that he had been involved in prior 
court proceedings. (R. 173)

The district court granted leave to appeal in forma pauperis 
(R. 179) and signed a certificate of probable cause (R. 180).
A timely notice of appeal was filed on January 18, 1968 (R. 181).

The remainder of this statement is divided into four parts. 
The first part is a resume of the facts developed in the original

3



habeas corpus hearing and contained in the record before this 
Court on the prior appeal. The second part will be a statement 
of the evidence introduced by the stabe on the hearing on remand, 
and the third and fourth parts will be the evidence adduced 
at the original hearing relating to the issue of coercion of 
the plea of guilty and the denial of the right to a public 
trial.

1. The original evidence as to the waiver of the right to 
counsel when appellant pleaded guilty

As stated by this Court, 381 F.2d at 163, n. 1, appellant 
testified that no one, either the Solicitor General Mr. Burgamy 
or Judge Cleveland Rees, advised him of his right as an indigent 
to have court—appointed counsel. This testimony was corroborated 
by the Judge himself with respect to what he did. Judge Rees 
testified at deposition that it was not his practice to advise 
defendants of their right to counsel unless the question was 
raised; ordinarily those matters were handled by the Solicitor 
General. He further testified that as to McGarrah's case speci­
fically, "I don't think I told him a thing about it." (Id, 
n.2; R. 88; see also, R. 89, 93-94.)

Testimony of the Solicitor was introduced in the form of 
answers and written interrogatories used in the state habeas 
proceeding and admitted in the district court under Federal Rules 
of Civil Procedure 26(d)(3) and (4). The interrogatories and 
the answers were purely conclusory and stated only that appellant 
was advised of his constitutional rights and was not denied any 
of them.

- 4



This Court, relying on Molignaro v. Dutton, 373 F.2d 729 
(5th Cir. 1967), and Lastinger v. United States, 356 F.2d 104 
(5th Cir. 1966), held that such conclusory statements were 
insufficient to show a knowing waiver of a right to counsel.
Since it was clear from both the state and federal record that 
appellant did not have counsel and that the Judge had testified 
that it was not his practice to advise defendants that they had 
a right to counsel before accepting the guilty plea and that 
he did not do so in this case, this Court remanded the case 
to give the state a further opportunity to introduce evidence 
to substantiate a knowing waiver of counsel. If the state was 
unable to produce such evidence to carry its burden, then the 
district court would have to invalidate the conviction subject 
to retrial by the state.

Also in the record before this Court on the prior appeal 
was other evidence relating to the circumstances surrounding 
appellant’s pleas of guilty. Judge Rees testified that appellant 
had been before him on a previous occasion for burglary and as 
a peeping-'Tom and that, after accepting pleas of guilty, he 
had put him on probation for five years (R. 92-93, 99). Further, 
the Judge testified that he did not speak to or ask any ques­
tions of appellant until after he had pleaded guilty; thus, 
he did not inform him that he could have received a penalty of 
70 years in prison if he pled guilty on the charges involved 
(R. 98-99). Further, the Judge testified that he did not inquire 
of appellant as to whether he was an illiterate (R. 102).

5



As to appellant's age, the Judge testified that he had been 
dealt with as a felonious offender. He further testified that he 
did not recall what McGarrah's age was and that he did not 
"know whether he was seventeen or not." (R. 96.) The Judge 
did testify that, as he recalled, the practice on pleas of 
guilty was that if a defendant was not 21 years old, an attorney 
was named to consult with him and to report back to the court 
as to whether he wanted to enter a plea of guilty or not. The 
Judge further testified that he did not know whether this was 
done in appellant's case (R. 96-97). It is clear, however, 
from the prior record that this procedure was not followed, 
since, as this Court observed, McGarrah was not in fact repre­
sented by an attorney.

2. The evidence introduced after this Court's remand

There were basically two items of evidence upon which the 
state sought to rely in meeting the burden imposed on it by 
this Court. The first was an exhibit introduced in the district 
court of two prior convictions on pleas of guilty of appellant 
the year before the convictions involved here (Defendant's Ex. 1). 
As was pointed out above, this evidence was already before the 
district court and this Court prior to the remand. Moreover, 
the prior pleas of guilty suffer from the same defects as do 
the ones involved here. They do not show that appellant was 
represented by counsel, was informed or knew of his right to 
counsel, was informed of the sentence he could receive, etc.

-  6 -



Beauchamp, who in 1955 was an agent of the Georgia Bureau of
Investigation and who had participated in the investigation
of one of the crimes to which appellant pleaded guilty. Generally,
the testimony of the witness was as conclusory and unspecific
as the testimony of the Solicitor held inadequate by this Court
on the prior appeal. The witness testified that appellant
"was aware of the charges placed against him" and that, in his
opinion, "he understood the charges that were being placed against 

2/him" (R. 117). On the question of whether appellant was made 
aware of the punishment that could be imposed upon him if he 
entered the pleas of guilty to the five charges against him, 
the witness testified: "I have no way of knowing whether he
knew at the time how much, or what penalty, each specific charge 
carried, I couldn't say as to that." (R. 118) The witness 
was only able to state that, "In my opinion he did realize at 
the time that he would be given a penitentiary sentence" (Ibid).
On cross-examination, he stated that this opinion was not based 
on anything that was said to appellant but only on his general 
recollection of the appellant's intelligence (R. 152). Thus, 
he was not able to say that appellant had been told or had any 
idea that such a penalty might be for 70 years.

The evidence that the trial judge relied on in his decision 
upon remand is found on pages 121-122 of the record. This

The second item of evidence was the deposition of W. T.

2/ The deposition appears at two places in the record, at 
pp. 113-166, and in the transcript of the hearing of Dec. 1-2, 
1967, at pp. 191-255, when it was read into the record. Record 
citations in this brief are to the original deposition.

7



testimony merely repeats the testimony of Judge Rees introduced
in the former trial of this case as to what was allegedly the
general practice of the court when faced with a person who was
being tried as a youthful offender. The witness stated that:

[T]o the best of my recollection it was the 
practice of the court at that time where the 
defendant was rather young or not of normal 
intelligence that he did appoint attorneys 
to assist them and explain to them what 
their plea of guilty meant, and advise with 
them. I remember distinctly that Mr. Horne was Court Reporter, he acted in that capacity 
on a number of occasions.

When questioned as to appellant's case, however, on cross-
examination, the witness testified:

To the best of my recollection there was a 
difference made in youthful offenders. In 
this particular case I can't say, but to 
the best of my memory the Judge did on 
young youths, he did appoint counsel to 
represent them. (R. 157)

Finally, when faced with the specific question as to whether
or not appellant McGarrah had an attorney or had been offered
an attorney, the witness testified as follows:

Q. [Y]ou are aware are you not Mr. Beauchamp 
that McGarrah did not have a lawyer, you 
remember that don't you?

A. Oh, yes. He didn't have a lawyer. Let 
me qualify that. To the best of my 
recollection he didn't have any lawyer.

Q. And you didn’t tell him that it was his 
right to have one did you?

A. No.
Q. Nobody else to your knowledge told him 

that it was his right to have one did 
they,— to your knowledge?

A. To my knowledge they didn't. (R. 164)
8



3. Evidence relating to coercion of the guilty pleas

Appellant testified below that in 1955 he had been arrested 
near his home by the then sheriff (now deceased) of Sumter 
County, Georgia (R. 52). At that time he was 17 years old, 
illiterate, and had had only two years of education (R. 47 and 
60). Appellant was taken to the home of an alleged victim of 
an attempted rape, but the woman failed to identify him as her 
attacker (R. 55-56). The sheriff then took appellant to jail, 
where he was held from seventeen to twenty—three days (R. 65-66). 
During that time, appellant testified that he was kicked and beaten 
with a "flapjack" about 8 or 12 inches long (R. 57-58). The 
sheriff also asked appellant about some other older cases, and 
told him that "before it is over, you are going to tell me all 
about these cases. I am going to beat you until you tell me 
something about them." (R. 58.)

Despite appellant's protestations that he was not guilty 
of any of the crimes, the sheriff continued to threaten and 
beat appellant, and at one point, locked appellant into a small 
room for 35 or 40 minutes (R. 59). After the sheriff had beaten 
the appellant for the second time, he told appellant to sign 
some papers. Appellant, who was illiterate and had had only 
two years of schooling, asked the sheriff what the papers were.
The sheriff refused to tell him and said only that if appellant 
would sign them he would stop beating him. He also told the 
appellant that he was in danger of being lynched and that some­
one was already trying to get him out of jail. Appellant

9



testified that he could not read the papers and that he signed 
them only because the sheriff was beating and threatening him 
(R. 59-60). During this period and before appellant was taken 
before the judge, he asked the sheriff for a lawyer but none 
was ever supplied to him. instead, the response of the sheriff 
was that he, the sheriff, would be appellant's lawyer (R. 61).

Appellant testified that when he was brought before Judge 
Rees in chambers, the only persons present were Sheriff McArthur 
and Mr. Charles Burgamy, the county solicitor (R. 61-62). 
Appellant testified that the solicitor did not ask him whether 
he wanted a lawyer, nor did the judge tell him that it was 
his right to have one. The judge did not explain to him that 
by pleading guilty, he was waiving his right to indictment by 
the grand jury. Appellant testified that he did not know any­
thing about the law (R. 62). The solicitor then asked appellant 
whether he was guilty. At first appellant told him that he was 
not, but then:

[T]he sheriff looked at me and winked his eye and bowed his head down, like that, and 
so he asked me about twice more times, and 
the sheriff did his hand like that, I guess 
he meant he was going to shoot me, and I 
told the man, yes, sir, I was guilty. (R. 63.)

The appellant testified that he was not guilty of any of the
crimes he was serving sentence for.

On cross-examination appellant testified that during the 
period he was in jail no one from his family visited him and, 
further, that his mother could not come to see him because she 
was pregnant at the time (R. 66). Finally, appellant testified

10



that he had been out of jail a short period of time after serving 
sentences for two prior convictions in Florida before his arrest 
on the charges now challenged (R. 67).

Appellant's mother, Mrs. Annie McGarrah, testified and 
generally corroborated his testimony. She said that when the 
sheriff drove her son to the house and her son got out of the 
car and protested his innocence, the sheriff said, "if he made 
another track, he would blow his brains out." (R. 42-43.)
Mrs. McGarrah testified further that her husband attempted to 
obtain a lawyer for her son but was unable to do so. The fol­
lowing Monday she gave birth to the child that she was pregnant 
with and so was unable to visit her son in jail at any time 
(R. 44-45). However, after her son was convicted, she visited 
him at the prison in Reidsville, Georgia, and saw some cuts 
and scars on his head which were not there on the day of his 
arrest. She further testified that he informed her that he 
received the scars as a result of beatings inflicted by the 
sheriff (R. 46-47).

4. Evidence relating to denial of a public trial

It is clear that at no time from the time of his arrest 
until he was incarcerated in Reidsville under a 70 year sentence 
did appellant have a hearing in open court and at a public 
trial. Both he and Judge Rees testified that the hearing at which 
appellant pleaded guilty was held in the Judge's chambers. Indeed, 
the judge said that it was his general practice to hear pleas

- 11



of guilty in chambers, and that was the case in appellant s 
case (R. 90). The only persons present were the sheriff, the 
solicitor, Mr. Beauchamp, and the judge (R. 61-62).

The appellant's aunt, Mrs. Azzie Lee Flo^d, testified 
that she heard by word of mouth that her nephew was to be tried 
on July 26th and because his mother was unable to go, she went 
to the courthouse (R. 49). However, she was not able to be 
present at appellant's trial. She testified that she went to 
the room where the trial was being conducted, but a white man 
told her that they were not going to allow her to see the appel­
lant and so she did not attempt to enter (R. 49-50).

12



Specifications of Error

1. The court below erred in holding that appellant had 
pleaded guilty and waived his right to counsel voluntarily and 
knowingly where there was no showing of an affirmative waiver
of those rights and where it was not shown by sufficient evidence 
that he had been informed of his right to counsel and of the
consequences of a plea of guilty.

2. The court below erred in not holding that the pleas 
of guilty entered in the state court were obtained by threats 
and force by state law enforcement officials.

3. The court below erred in not holding that the appellant 
was denied his right to a public trxal as guaranteed by the
due process clause of the Fourteenth Amendment.

13



ARGUMENT
I

AT THE HEARING ON REMAND THE STATE 
FAILED TO CARRY THE BURDEN OF PROOF 
IMPOSED UPON IT BY THIS COURT

In its decision of July 26, 1967, this Court remanded this 
case to the district court for a further hearing, at which the 
state would be obliged "to substantiate a knowing waiver and 
to do so by evidence which is not so deficient in form that 
there is doubt as to whether constitutional requirements have 
been observed," i.e., by the "development of specific facts."
381 F.2d at 165. Petitioner contends that the state failed to 
introduce evidence at the hearing on remand which met this 
burden. Indeed, the only "specific facts" developed show 
affirmatively that appellant was not informed of his right to 
appointed counsel (R. 164, quoted supra, at p. 8).

Initially, it is clear, as has been shown in the statement 
of facts above, that none of the evidence introduced by the 
state was evidence that was not before the district court and 
this Court in the prior appeal. The only two items of evidence 
relied upon by the district court were the record of McGarrah's 
prior convictions by pleas of guilty and the testimony of Mr. 
Beauchamp as to what his recollection of what an alleged general 
practice was when a juvenile offender was tried. Both of these 
matters had been fully brought out and developed in the original 
hearing on the writ of habeas corpus and were presumably con­
sidered by this Court when it held that there was insufficient

14



evidence in the record to show a knowing waiver of the right of
3 /counsel and an understanding plea of guilty.

Even if these matters had not been in the record before, 
however, it is clear that neither would be sufficient to carry 
the burden of proof imposed by this court. This is true whether 
they be taken singly or together. For example, in Carnley v. 
Cochran, 369 U.S. 506 (1962), which, of course, was the case 
primarily relied upon by this Court in reversing the district 
court in the prior appeal, both elements on which the district 
court based its opinion below were present. It is clear from 
the opinion of the Supreme Court that Carnley had a prior criminal 
record (see 369 U.S. at 511), and it was not even suggested 
by the Supreme Court that this was sufficient to show a know­
ledgeable waiver of a right to counsel.

From the opinion of the Supreme Court of Florida, it is 
also clear that one of the bases relied upon by that court in 
rejecting Carnley's claim is that there was a general practice

3/ The only other testimony of Mr. Beauchamp which might be 
said to go to show a meaningful plea of guilty was the testimony 
that in his opinion appellant realized that he would be given a 
penitentiary sentence when he pled guilty (R. 118). The witness 
specifically stated, however, that he had no way of knowing 
whether appellant knew what penalty each specific charge carried 
and therefore how many years in prison he would be subjecting 
himself to by pleading guilty. In addition, on cross-examination, 
the witness made clear that his opinion that appellant was aware 
that he would be given a penitentiary sentence was not based on 
anything that was said to appellant, but only on the general 
recollection of appellant's intelligence. As will be shown 
below, this testimony falls far short of establishing that it 
had been explained to appellant what sentence he could have 
received, or establishing in any other way that he knew the 
actual possible sentencing consequences of a plea of guilty.

15



relating to appointment of counsel followed in criminal cases. 
The Florida court said:

It is the general practice in this state when 
trying one charged with felony to inquire of him when he is arraigned if he has or desires 
counsel. If he answers in the negative and 
expressed a desire to have counsel, the court 
will generally appoint one to represent him.
Carnley v. Cochran, 123 So.2d 249, 251 (1960).

Nevertheless, the Supreme Court of the United States reversed
the holding of the Florida Supreme Court and specifically held
that the record was silent as to any evidence showing that an
offer of counsel was intelligently and understanding^ rejected.

Taking the two elements relied upon by the district court 
separately, on this record neither was a sufficient basis for 
denying habeas corpus. As to inferring a knowledge of the law 
because of prior contact with it, the cases are numerous that 
refuse to draw such an inference of knowledge of one's consti­
tutional right to be represented by counsel or to be appointed 
an attorney if one is indigent. For example, in Glasser v. 
United States, 315 U.S. 60 (1942), the Supreme Court indicated 
that the fact that a defendant was a lawyer, indeed a former 
assistant United States attorney, was in itself insufficient 
to show a waiver of the right to assistance of counsel, 315 
U.S. at 70. In many cases courts have rejected a finding of a 
knowing waiver despite the fact that a defendant has had prior 
convictions or a long criminal record. See, e.g., Palumbo v . 
New Jersey, 334 F.2d 524 (3rd Cir. 1964); Berryhill v. Page,
349 F.2d 984, 986, n. 2 (10th Cir. 1965); Shawan v. Cox, 350 
F.2d 909 (10th Cir. 1965); Day v. United States, 357 F.2d 907 
(7th Cir. 1966).

16 -



Moreover, the record of appellant's prior record introduced 
here is fatally defective as far as allowing an inference of 
any knowledge of constitutional rights at all. They are simply 
the records of two pleas of guilty entered in the same court by 
appellant when he was only 16 years old. They do not show that 
he had counsel, was offered counsel, or was told of his right 
to have counsel appointed. In short, they are as constitutionally 
objectionable as are the five convictions here, and to permit 
them to serve as proof of anything would amount to a denial of 
due process in and of itself. Cf., Burgett v. Texas, 389 U.S.
109 (1967) (violation of due process to admit into evidence
in a recidivist proceeding a certified copy of a prior conviction
that did not show that defendant was represented by counsel).

This leaves only the testimony of Mr. Beauchamp and Judge 
Rees of an alleged general practice of appointing counsel to 
confer with and advise a juvenile offender before accepting 
pleas of guilty. Their testimony, particularly when examined 
in the context of the full record, is simply insufficient to 
substantiate affirmatively a knowing waiver of counsel. To 
begin with,the practice, as described, was clearly not followed 
in the present case.

Both the judge and the G.B.I. agent testified that, when a 
person was tried as a youthful offender, an attorney was actually 
appointed and did confer with the defendant (R. 96-97; 121-22). 
However, neither witness was able to recall that this practice 
was followed in appellant's case (R. 96-97; 157). Quite the

17



contrary, the specific practice testified to was not followed,
since, as this Court pointed out (381 F.2d at 164) if there is
one thing that is clear from the record it is that appellant
did not actually have an attorney. In addition to the testimony
of appellant and the judae already in the record, Lt. Beauchamp

x 4/so testified on remand (R. 164, quoted on p« 8, supra).
Since no counsel was in fact provided for appellant McGarrah, 

the only way that the evidence introduced by the state can be 
said to fulfill the burden of proof imposed by this Court, is 
for it somehow to be contorted into evidence that an unequi­
vocal offer of counsel was made by the judge and knowingly refused 
by appellant. The record, however, will not even support this 
inference; indeed, it affirmatively negates such a conclusion.
To begin with, the judge did not even speak to or question McGarrah 
until after he pleaded guilty. His sole conversation with 
appellant was, after hearing the sheriff's story as to the 
alleged crimes, to admonish him for his supposed misbehavior 
in the process of sentencing him to 70 years in prison (R. 98-99; 
100). He certainly did not speak to him about any right to 
an attorney (R. 88-89; 93-94). He did not inquire to find out 
whether he was literate (R. 102), and,as far as the record shows, 
did not even find out how old he was (R. 96).

4/ See also, the answers to the interrogatories propounded to 
Solicitor Buraamy, introduced in the state habeas proceeding and 
referred to by this Court, 381 F.2d at 163. The solicitor answered "no" to the question whether appellant requested the 
trial judge to appoint counsel and "no" to the question whether 
if such a request was made it was denied. It can be inferred 
that since no request was made, no lawyer was appointed.

18



Moreover, there is clear testimony (in addition to that of 
appellant (R. 62)) negating any holding that there is evidence 
in the record showing that an offer of counsel was made. The 
testimony was given by Lt. Beauchamp on cross-examination, after 
testifying that appellant did not have a lawyer and that he 
didn't tell him of his right to have one. The examination 
continued:

Q. Nobody else to your knowledge told him 
that it was his right to have one, did 
they— to your knowledge?

A. To my knowledge they didn't (R. 164).
This testimony, to the effect that the witness never heard anyone
inform appellant of his right to counsel, leaves the record as
devoid of evidence of a knowing waiver as it was before.

Certainly it is indisputable that the standard imposed by
this Court has not been met, i.e., that the State must introduce
specific facts "to substantiate a knowing waiver and . . .  by
evidence which is not so deficient in form that there is doubt
as to whether constitutional requirements have been observed."
381 F.2d at 165. In so holding, this Court relied on Carnley
v. Cochran, where the Supreme Court said:

Presuming waiver from a silent record is 
impermissible. The record must show, or 
there must be an allegation and evidence 
which show, that an accused was offered 
counsel but intelligently and understand­
ing^ rejected the offer. Anything less 
is not a waiver. 369 U.S. 506, 516 (1962) .

Here, not only is there evidence contradicting any assertion 
that an offer was made, but the evidence relied upon by the

19



court below to infer such an offer is so deficient and so contra­
dictory to other evidence in the record as hardly to permit the 
argument that there is not enormous "doubt as to whether consti­
tutional requirements have been met."

The most that can possibly be said of the testimony relied
upon, alone or in the light of the entire record, is that it is
weak circumstantial evidence of an offer of counsel. However#
even so considered, it is not enough. The Supreme Court, speaking
of the obligation to inform a defendant of his right to counsel
at interrogation, has said:

No amount of circumstantial evidence that 
the person may have been aware of this right 
will suffice to stand in its stead. Miranda 
v. Arizona, 384 U.S. 436, 471-72 (1966).

Finally, the record here is fatally defective in another 
respect. On numerous instances courts have made it clear that 
in order for a plea of guilty to be valid there must be a clear 
explanation to the defendant of the possible specific sentencing 
consequences of his plea, in addition to an offer of counsel. 
Compare, Berryhill v. Fage, 349 F.2d 984 (10th Cir. 1965) and 
Shawan v. Cox, 350 F.2d 909 (10th Cir. 1965), with Sandoval v. 
Tinsley. 338 F.2d 48 (10th Cir. 1964). Compare, Harvey v. 
Mississippi, 340 F.2d 263 (5th Cir. 1965), with Williams v. 
Babineaux, 357 F.2d 481 (5th Cir. 1966). Here, there is no 
evidence that such an explanation was made. As pointed out above, 
the judge did not speak to appellant until after the pleas were 
entered. There is nothing in the interrogatories to the Solicitor 
that even suggests that he informed appellant of the sentences

20 -



he could receive. The most Lt. Beauchamp was able to say was
that he assumed, from observing appellant (R. 152), that he
knew he could receive a penitentiary sentence. He specifically
stated that he had no way of knowing "whether he knew at the
time how much, or what penalty, each charge carried" (R. 118)
and it would be "purely speculation" on his part to say that

5/appellant knew the length of the sentence he would receive.
This falls far short of evidence that appellant was told how 
many years he might receive, as required by the cases cited supra.

To summarize, on remand the one new witness whose testimony 
was introduced by the state said that as far as he knew no one 
informed appellant of his right to counsel. The evidence relied 
on by the court below, concerning an alleged general practice 
which the record demonstrates was not in fact followed in 
appellant's particular case, was not enough to substantiate 
either an offer of counsel nor a knowing waiver of the right or 
a knowing plea of guilty.

5/ Indeed, the witness’ testimony indicates that McGarrah could 
have been misled or at least could have failed to understand the 
consequences, in terms of years, of his pleas. Lt. Beauchamp's 
assumption as to appellant's knowledge was based partly on his 
previous encounter with such charges the year before (R. 118— 
119). On that occasion, of course, appellant, after pleading 
guilty to one of the same charges, burglary, had received a 5- 
year prison sentence from which he received probation.

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THE EVIDENCE BELOW SHOWED THAT THE 
PLEAS OF GUILTY WERE ENTERED BECAUSE 
OF COERCION BY VIOLENCE OR THREATS ON 
THE PART OF STATE OFFICIALS^/

Just as in the case of a confession, a plea of guilty must 
have been voluntarily made, and if it has been gained by violence, 
threats, or undue inducement, it is invalid and a conviction 
based on it cannot stand. Moore v. Michigan, 355 U.S. 155 (1951). 
In the present case, appellant testified that he was incarcerated 
for a period of about 17 days, during which time he was beaten, 
threatened with lynching, and otherwise intimidated into signing 
the pleas of guilty. During this period he did not see his 
family and was without assistance of counsel, although he asked 
for an attorney, circumstances which should be considered in 
determining whether the pleas were voluntary. Cf., Davis v.
North Carolina, 384 U.S. 737 (1966).

This testimony is uncontradicted in the record. Nevertheless, 
the trial judge below chose not to believe it on the grounds 
that appellant had nothing to lose and everything to gain by 
giving it. The trial judge also, however, stated (in his ori­
ginal opinion in this case) that appellant's testimony as to the 
beatings was not corroborated (R. 76). This conclusion is not 
supported by the evidence. Appellant's mother testified that 
she visited appellant in Reidsville Prison shortly after he had 
been sent there. She testified that she observed "some cut

6/ Sections II and III of this brief address themselves to the 
other contentions of appellant not passed on by this Court on 
the prior appeal because of its remand on the issue of waiver 
of the right to counsel. 381 F.2d at 165.

22



places in his head" which were scars (R. 46). Further, he did 
not have those scars the last time she had seen him, immediately 
after he had been taken into custody by the sheriff. She further 
testified that appellant told her at that time that the sheriff 
had beaten him and had inflicted the scars which she observed 
(R. 47).

This testimony was certainly sufficient corroboration of 
appellant's story of having being beaten. To hold otherwise, 
would put him in the position of being absolutely barred from 
proving his allegation that he had been beaten, despite the 
absence of any evidence contrary to his contention. The sheriff 
whom he said abused him is now dead. Because of the total 
failure of the trial judge in 1955 to conduct any sort of 
inquiry as to whether the pleas of guilty were being voluntarily 
made, the decision of the district court below essentially shuts 
the appellant off from ever proving his otherwise uncontradicted 
allegations.

Ill
appellant was denied the right to
A PUBLIC TRIAL AS GUARANTEED BY THE
FOURTEENTH AMENDMENT

The right to a public trial is one of the aspects of due 
process of law guaranteed by the Fourteenth Amendment to the 
Constitution, and thus applies to state as well as federal pro­
secutions. Re Oliver, 333 U.S. 257 (1948).

Here, the only trial afforded the appellant, the acceptance 
of the pleas of guilty and sentencing, was clearly not public.

23



There was no announcement or notification that the proceeding 
was to take place, and appellant's aunt found out about it only 
by word of mouth (R. 49-50). The proceeding was not in open 
court, but in the judge's chambers and it was admitted by the 
judge that it was the general practice for defendants to be 
brought before him in chambers for an informal proceeding when­
ever he was told by the solicitor that they were ready to plead 
guilty (R. 90). At the proceeding in chambers, the only persons 
present were appellant, the sheriff, Lt. Beauchamp, the county 
solicitor, and the judge (R. 61-62). Appellant's aunt, the 
only relative of his able to attend, attempted to enter the 
room but was barred by someone in authority (R. 50).

There clearly was no valid waiver of the right to a public 
trial. Cf., Johnson v. Zerbst, 304 U.S. 458 (1938). Appellant 
was without the aid of counsel and neither the judge nor the 
solicitor informed him of his right. Indeed, it is clear from 
the record that they themselves did not believe it necessary 
to hold the proceedings in public, since, as the district court 
found in its first opinion herein, it was the common practice
to receive pleas in chambers (R. 75).

The earlier decision of the court below apparently was based 
on the idea that the right to a public trial does not apply to 
the giving of a guilty plea and the subsequent sentencing. It 
is contended by appellant that such a conclusion is erroneous 
and is not supported by applicable law. In Re Oliyer, 333 U.S. 
257 (1948), the Supreme Court discussed at length the policies 
and purposes underlying the guarantee against secret trials:

24



Whatever other benefits the guarantee to an 
accused that his trial be conducted in public 
may confer upon our society, the guarantee has 
always been recognized as a safeguard against 
any attempt to employ our courts as instru­
ments of persecution. The knowledge that 
every criminal trial is subject to contem­
poraneous review in the forum of public 
opinion is an effective restraint on possible 
abuse of judicial power. . . Certain pro­
ceedings in a judge's chambers . . .  have occasionally been countenanced by state courts, 
but there has never been any intimation that 
all of the public, including the accused's 
relative, friends, and counsel, were barred 
from the trial chamber. 333 U.S. at 270,
272 (footnote omitted).IS

Certainly the protection inherent in a public trial applies 
with full force to a defendant who pleads guilty, for the giving 
of his plea and the sentencing is the only trial which he receives. 
Indeed, it can be argued that he is more in need of a public 
forum than one who pleads not guilty, since he does not even 
have the protection of a trial by jury or arraignment in open 
court. In the present case, appellant was held for at least 
seventeen days without being allowed to see an attorney or his 
relatives or friends, then taken to a chamber where the only 
ones present were officials of the law. After a summary pro­
ceeding in which the judge heard only the sheriff's version of 
the alleged crimes he was sentenced and taken to the state 
penitentiary, where he has remained ever since. The only

7/ Thus, in a number of state cases, appellate courts have 
upheld convictions based on pleas of guilty in judge's chambers, 
or elsewhere than in a courtroom, but only where it appeared that 
no one was barred from entering the room. See, People v. Simmons,, 
285 App. Div. 470, 138 N.Y.S.2d 97 (1955); People v. Hancasky.,
410 111. 148, 101 N.E.2d 575 (1951).

25



opportunity for relief of the inherently coercive circumstances 
in which he found himself and for unknown witnesses to come 
forward at least to mitigate the sheriff's account-^ would 
have been at an open and public hearing.

CONCLUSION

Any of the three grounds asserted above taken alone would 
be sufficient for the reversal of the decision below and for the 
release of appellant from his present confinement. However, 
when one views the circumstances of his conviction as a whole, 
the cumulative effect is overwhelming. The appellant, a 
seventeen-year-old Negro, illiterate, with only two years of 
schooling and unversed in the law, was arrested and charged with 
serious crimes of which he claims he is innocent. The sheriff 
kept him in custody for a period of from seventeen to twenty- 
three days, during which time he saw neither an attorney nor 
any relatives or friends. Appellant testified that he was beaten 
and threatened with lynching; but even if his uncontradicted 
testimony is disbelieved, the circumstances of his incarceration 
were overwhelmingly coercive. He was taken into the judge's 
chambers where he faced only officials of the law; the one member 
of his family who was able to attend was barred. He signed 
pleas of guilty and waivers of his right to be indicted without 
assistance of counsel and without the judge making any attempt

8/ This is one of the benefits accruing from a public trial.
Re Oliver. 333 U.S. 257 at 270, n. 24.

26



to discover his circumstances or to insure that he knew What his 
rights were or whether he understood the consequences of his 
pleas. The judge, on the basis of the unsworn account of the 
sheriff as to the alleged offenses, then sentenced him to the 
maximum of seventy years. From the beginning to the end of the 
state proceedings appellant was denied every semblance of due 
process of law, and his conviction must fall.

For the foregoing reasons, the order of the district court 
denying the petition for writ of habeas corpus and remanding 
appellant to the custody of respondent should be reversed.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

C. B. KINGP.0. Box 1024 
Albany, Georgia

Attorneys for Appellant

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the 
Brief for Appellant on the attorney for appellee, Joel Williams, 
Esq., Assistant Attorney General of the State of Georgia, State 
Judicial Building, Atlanta, Georgia, by depositing the same in 
the United States mail, postage prepaid.

Done this 11th day of May, 1968.

Attorney for Appellant
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