# Dukes v. Warden/Dissent Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Dissenting Opinion Marshall
[p259] MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS joins, dissenting.
I dissent. Before sentencing, petitioner stated that he was innocent, and sought to vacate his guilty plea so that he could proceed to trial with new counsel in whom he had confidence. He claims, with ample support in the record, that he was advised to plead guilty—and indeed pressured to do so—by lawyers who did not devotedly represent his interests. I agree with petitioner that he should have been permitted to withdraw his guilty plea.

## I

Petitioner, Charles Dukes, was arrested on March 14, 1967, and charged by Hartford, Connecticut, authorities with a violation of the Uniform State Narcotic Drug Act and with receiving stolen goods. From the beginning, there was a sharp conflict between petitioner and his lawyers over whether he should plead guilty. Two partners from the law firm that petitioner retained, each of whom handled the case on different occasions, tried to convince petitioner to plead guilty to both charges. They argued that because there were several other outstanding charges against him, petitioner's best hope was to secure an agreement to consolidate all the charges for disposition together, so that he could receive reasonable concurrent sentences. But petitioner maintained that he was innocent and would not agree to plead guilty. App. 39, 112, 119-120.
Although petitioner had not yet pleaded to either of the charges, the narcotics case was called for trial on May 9, 1967. The conflict between lawyer and client surfaced dramatically when petitioner's attorney immediately sought to withdraw from the case "because there happens to be a slight conflict between my client and myself, and it's not financial, Your Honor, it is one [p260] basically that goes to the heart of my representing him...." Noting his view that an advocate "must believe in the cause" of his client, the lawyer went on to reiterate that the disagreement might "prejudice the defendant." He reported that petitioner "either wants to represent himself or get counsel outside the county that he can have more confidence in for some reason or other." App. 9, 10, 17. The majority concedes that this announced "conflict" was over the lawyer's insistence on pleading the client guilty. Then petitioner himself addressed the court to explain that "with local counsel I am afraid, well, I know there is going to be resentment. I have reasons to believe that through conversations, and I'd like the opportunity to hire an attorney from another state that don't [sic] have no knowledge of the case.... Otherwise... I intend to try my own case." App. 18. Petitioner's lawyer spoke again concluding with the judgment that he, for one, could not "do this man justice in this particular issue." App. 19-20. But the court denied counsel's motion to withdraw "at this time." Petitioner then pleaded not guilty, and trial was scheduled for the following morning.
Proceedings did not actually resume until a week later, on May 16. After conversations in the courthouse that morning, App. 131-132, Dukes agreed to follow the advice of his lawyers, who admittedly had been applying "pressure" on him, App. 112, 140: he pleaded guilty to both the narcotics charge and the larceny-receiving charge. Prior to entry of the pleas, the judge asked petitioner whether he was "fully satisfied with the services [your lawyer] is rendering you...." App. 24, 41. [p261] Petitioner said he was. But this satisfaction, such as it was, was short lived.
On June 16, 1967, petitioner appeared for sentencing. His lawyer immediately informed the court that petitioner wished to withdraw his plea and had secured other counsel, from New Haven. Noting the lateness of these developments, petitioner's lawyer conceded that "I had a suspicion... that this [might] take place because of the problem when he entered the plea. I was maybe a little forceful." And although he disputed petitioner's claim that his present lawyers did not "properly represent him," counsel once again informed the court that petitioner "doesn't have any confidence in me." App. 28, 31. Petitioner himself told the court about his difficulty in getting a lawyer who would, he thought, do him justice. He also explained that when he pleaded guilty he was still recuperating from his recent suicide attempt, see n. 1, supra, and "didn't realize at the time actually what I was pleading to." App. 32. See n. 8, infra. Thus, contrary to the majority's description, petitioner, through his lawyer and in his own voice, gave several specific reasons for wanting to withdraw his plea.
Following the prosecutor's statement opposing petitioner's request, and without any further inquiry, the judge refused to let petitioner withdraw the guilty plea. When the judge asked Dukes what he wished to say before being sentenced, Dukes replied: "I am rather flabbergasted really, because I didn't expect this this morning. It just puzzles me. I am not guilty of the charges. I am not guilty." App. 33. Petitioner was sentenced to [p262] five to 10 years on the narcotics count and two years on the receiving-stolen-property count, as the prosecutor had recommended. The alleged reason for the plea—to gain consolidation of all outstanding charges against petitioner, and thereby secure concurrent sentences on the pending charges—was never fulfilled. On the day of sentencing, petitioner refused to plead guilty, to any charges, and consolidation was impossible. App. 30-33, 157.
As just noted, the sentencing judge did not inquire into the facts surrounding either petitioner's legal representation or his plea. But these facts were developed at a state habeas corpus hearing, and petitioner's lack of confidence in his lawyer finds striking support in the hearing record.
That record details the sharp conflict between lawyer and client over the decision to plead guilty. But, more significantly, it reveals that the lawyer who advised petitioner to plead guilty had a gross conflict of interest. Ancillary to the instant proceedings, petitioner's lawyer was representing two young women charged with conspiracy to obtain money by false pretenses. Petitioner was a codefendant in this second case, and was represented by another attorney. This second prosecution was unrelated to the matter now before our Court. The two young women pleaded guilty to the false pretenses charges on April 18, 1967, and on June 2, 1967, appeared for sentencing. The sentencing judge was the same judge who was to sentence petitioner two weeks later.
[p263] In his remarks to the judge on behalf of the two women, the lawyer told the court that these women had come "under the influence of Charles Dukes," who had led them astray. He pointed out that their cooperation with the state police had "led to the downfall of Dukes" and "capitulated [Dukes] into taking a plea [of guilty] on which he will shortly be removed from society." He placed on Dukes the blame for the offenses committed by the women, saying that he was "the most culpable since he had all the instruments with which to dupe the girls." App. 43-44, 68-71. The two women were then sentenced to short prison terms.
[p264] In short, to secure lighter sentences for one set of clients, the lawyers denigrated another of his clients who was to appeal before the same judge for sentencing in two weeks. Even absent any showing that the lawyer's "pressure" on petitioner to plead guilty was improperly motivated, the gross conflict of interest obvious from counsel's remarks lends strong support to petitioner's presentence claim that he was not receiving devoted representation from his attorney.

## II

I would permit petitioner to withdraw his guilty plea. As JUSTICE DOUGLAS has recently reminded us,
   "However important plea bargaining may be in the administration of criminal justice, our opinions have established that a guilty plea is a serious and sobering occasion inasmuch as it constitutes a waiver of the fundamental rights to a jury trial, Duncan v. Louisiana, 391 U.S. 145, to confront one's accusers, Pointer v. Texas, 380 U.S. 400, to present witnesses in one's defense, Washington v. Texas, 388 U.S. 14, to remain silent, Malloy v. Hogan, 378 U.S. 1, and to be convicted of proof beyond all reasonable doubt, In re Winship, 397 U.S. 358." Santobello [p265] v. New York, 404 U.S. 257, 164 (1971) (concurring opinion).
See Boykin v. Alabama, 395 U.S. 238, 243 (1969). The precondition for all these rights is the constitutional "right not to plead guilty." United States v. Jackson, 390 U.S. 570, 581 (1968). A defendant may waive his constitutional rights through a guilty plea, but such waivers are not quickly presumed, and, in fact, are viewed with the "utmost solicitude." Boykin v. Alabama, supra, at 243. Our decisions, constitutional and statutory, have all recognized that, consistent with the requirements of law enforcement, adequate safeguards can and should exist to give meaning to the right not to plead guilty. E.g., Santobello v. New York, supra; Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, supra; McCarthy v. United States, 394 U.S. 459 (1969); White v. Maryland, 373 U.S. 59 (1963); Machibroda v. United States, 368 U.S. 487 (1962); Walker v. Johnston, 312 U.S. 275 (1941); Kercheval v. United States, 274 U.S. 220 (1927).
I would not view a guilty plea as an irrevocable waiver of a defendant's federal constitutional right to a full trial, even where the plea is, strictly speaking, "voluntarily" entered. I adhere to the view that "where the defendant presents a reason for vacating his plea and the government has not relied on the plea to its disadvantage, the plea may be vacated and the right to trial regained, at least where the motion to vacate is made prior to sentence and judgment." Santobello v. New York, supra, at 267-268 (opinion of MARSHALl, J., concurring and dissenting, with whom BRENNAN, J., and STEWART, J., joined).
Such a rule is a sensible part of the constitutional law of waiver. We view guilty pleas with the "utmost solicitude" because they involve the simultaneous waiver of so many constitutional rights; our system of [p266] law favors the assertion of constitutional rights, not their waiver. It is inconsistent with that basic viewpoint for guilty pleas to be irrevocable even before sentencing. Usually because of new information or new insights, defendants may have "sober second thoughts" about their pleas. Where the sentencing itself is postponed beyond the day of pleading, the door should not be slammed shut to formal reconsideration of the decision to plead guilty. A guilty plea is not a trap. Ordinarily, a defendant who changes his mind for sufficient reason and in timely fashion should not be deemed to have waived his right to a full trial. In short, absent the government's showing specific and substantial harm, I would generally permit withdrawal of the plea before sentencing.
Such a rule would not compromise the government's interests. "[I]n the ordinary case where a motion to vacate is made prior to sentencing, the government has taken no action in reliance on the previously entered guilty plea and would suffer no harm from the plea's withdrawal." Santobello v. New York, supra, at 268 (opinion of MARSHALL, J., concurring and dissenting). The defendant seeks only the basic opportunity to contest the original charges against him. A full trial could be promptly held, and, since the period between plea and sentencing is usually short, there will have been no substantial delay. Where the government can show specific and substantial harm, the defendant may be held to his plea. But, ordinarily, the government can claim only disappointed expectations. In such a case, the balance of interests must favor vindication of the individual's most basic constitutional rights.
In the instant case, petitioner tendered a specific reason for vacating his guilty plea. Protesting his innocence, he claimed that he was not getting satisfactory legal representation and had retained new counsel. The record as already made by June 16, 1967, showed an [p267] admitted and longstanding conflict between lawyer and client over the course of the litigation. Properly advised by loyal counsel, the defendant himself, of course, must have the ultimate decision about pleading guilty. The lawyer admitted that he had been "a little forceful" in urging petitioner to plead guilty. Given all these things, petitioner, in my view, had ample justification for rescinding the plea before sentencing.
But we need not be limited to the bare record already made by June 16, 1967. The trial judge then did not even minimally inquire into the facts behind petitioner's rather inarticulate claims. He should have done so, rather than quickly and simply denying the motion to vacate the plea. It was not until the state habeas action that the facts surrounding petitioner's representation were developed. As this subsequent record shows, petitioner's fears that he was not getting devoted representation had strong objective basis. (It is of course irrelevant that the evidence of a clear conflict of interest may have exceeded even petitioner's earlier fears of inadequate representation.) As the court below concluded,
   "Obviously, the derogatory remarks by [the attorney] on behalf of his clients in one case about [p268] a client whom he is representing in another case were highly improper. 'When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and his champion.'" 161 Conn. 337, 345-346, 288 A. 2d 58, 62-63 (1971).
The finding of "improper" conduct gives graphic support to petitioner's presentence claim that his lawyers were not properly representing his interests, the main reason petitioner gave for wanting to withdraw his plea.
There is no need to decide whether this conflict of interest deprived petitioner of his Fourteenth Amendment right to counsel, or functioned to make his guilty plea "involuntary." It is sufficient to conclude here that, before sentencing, petitioner's plausible dissatisfaction with counsel constituted a sufficient reason for withdrawing his guilty plea. The majority appears to equate the questions, suggesting by its analysis that if the plea was neither involuntary nor secured and "affected" by unconstitutionally ineffective counsel, it may not be vacated. But this is to equate the situations before and after sentencing. I think we are required to apply a much less rigorous standard before sentencing. The point in this case is that (1) petitioner sought to vacate his plea [p269] before sentencing because he questioned the representation he was receiving, and that (2) petitioner's conclusions, on the record, were plausible, to say the least. This, it seems to me, is enough to permit withdrawal of the plea before sentencing. The majority totally ignores the fact that the record demonstrates a longstanding conflict between lawyer and client, that the lawyer himself admitted being forceful in securing the plea, and that the lawyer engaged in what the court below found to be "highly improper" conduct in conflict with the loyalty a client rightfully expects from his lawyer. As if he did not understand whose choice it is to go to trial, petitioner's own lawyer gave this extraordinary account of his relationship with petitioner, who throughout protested his innocence:
   "[Dukes] claimed consistently to me that he didn't make any sale of narcotics, and so I told him what I thought about the case, after reviewing the evidence. So from the beginning, Dukes wanted a trial, and I probably thought I might have been too forceful, but it sometimes happens that your judgment, you're trying to impose upon a client, knowing that it's in his best interest, at least in your opinion it is, and I told Charlie it would be winning the battle and clearing the way, because there was no way, with these five felony warrants pending against him, that I was able to win them all, because I said no matter what you think about this case, it's my opinion that it's your best interest to plead guilty, and at no time did I have a conversation whether he was guilty or not. Mr. Delaney handled that at the time of the change of plea, but I know when I talked to him, he maintained he was innocent. At some later date he changed his plea, so I assume there was some conversation about that, and I don't know what took place in the meantime, but basically, there [p270] was the reason that I made that statement to the Court, because he was insistent that he wanted to try the case, and I kept trying to get the matter put down, because I didn't think it was in his best interest to try it." App. 120.
Of course, on my view, it is of no real significance that on the day of the guilty plea petitioner expressed satisfaction with counsel. Where the loyalties of counsel are questioned even after the plea is entered, a defendant undercuts the premise of his prior guilty plea and the waiver of rights that plea entailed. Surely the same is true where, as here, the defendant specifically asserts his innocence after pleading.
When a defendant gives a reason for withdrawing his plea before sentencing, and the reason is a good one, he should be allowed to withdraw the plea and regain his right to a trial. Here, petitioner's reason as conflict of interest of his lawyer. A part of his conflict was his lawyer's insistence that he plead guilty and petitioner's insistence that he was innocent. This was certainly a conflict. No wonder the last words of petitioner before sentencing were:
   "I am rather flabbergasted really, because I didn't expect this this morning. It just puzzles me. I am not guilty of the charges. I am not guilty."
[p271] The State in our case has never claimed that it would suffer any harm beyond disappointed expectations about the plea itself. Where the defendant has presented a plausible reason for withdrawing his plea, this mere disappointment cannot bar him from regaining his constitutional rights before sentencing.
I would remand the case with instructions that the plea be vacated and petitioner given an opportunity to replead to the charges in the information.

## Notes

* ↑ The record discloses that on May 10 the case was continued until May 16 for trial. On May 9, as petitioner left the courtroom, he was arrested by Hartford police on other charges. Petitioner attempted suicide while in police custody, and was hospitalized for several days.
* ↑ The New Haven attorney was not in the courtroom, although he had telephoned the prosecutor that morning from out of town. Petitioner apparently expected his new lawyer to be present in the courtroom and to "take over" after the guilty plea was withdrawn. App. 150-151. That lawyer did represent petitioner on his direct appeal to the Supreme Court of Connecticut. 157 Conn. 498, 255 A. 2d 614 (1969).
* ↑ I express no view on the subject of whether further evidentiary development might be appropriate were petitioner to pursue this case on federal habeas corpus. See nn. 4 and 7, infra. Given the way I view this case, enough is present in the record to vindicate petitioner's position.
* ↑ It is not clear from the lawyer's words whether he meant that Dukes had been "capitulated" into pleading guilty to the offense allegedly committed with the two women. At the habeas hearing, the lawyer testified that he did not remember Dukes' ever taking a plea in that case. App. 122. There is a strong basis for thinking that the lawyer was in fact referring to the guilty plea entered in our case. At the women's sentencing, he specifically stated that "since I was on both sides of the case, having been on the other side on the other case I can tell Your Honor that it was these girls that... capitulated [Dukes] into taking a plea.... " App. 68 (emphasis added). However, the court below found that all the "remarks by [the attorney] concerning the plaintiff had only to do with the relationship of the plaintiff and the two girls in that particular case where all three of them were codefendants, and in no way referred to the present case for which he was later to be sentenced." 161 Conn. 337, 341, 288 A. 2d 58, 60. Nevertheless, certified court records sent to our Court make clear that Dukes never pleaded guilty to the offenses involving the women, and those charges were nolled in February 1970. A direct connection between the false pretenses case and our case is apparently conceded by today's majority when it notes that the plea bargain in our case included a deal in which petitioner would plead guilty to the false pretenses charge. See ante, at 253-254. Obviously, if counsel was in fact reporting the women's role in "capitulating" Dukes to plead guilty in our case, his own conflict of interest would be even more pernicious than that now clear from the record.
* ↑ The court below observed that these "improper remarks made by counsel on June 2, 1967, were a repetition of what had already been told to the court in substance by the state's attorney." 161 Conn., at 347, 288 A. 2d, at 63. (The court made a similar observation about the presentence report, which is not in our record.) This, of course, is irrelevant to the question of whether petitioner was represented by an attorney loyal to his interests. But, in any event, it is incorrect to say that counsel's remarks merely repeated the statements of the prosecutor. The prosecutor simply reported that the two women "became associated with one Charles Dukes... Charles Dukes had paraphernalia with respect to checks and money orders and they agreed to cash these checks with false credentials furnished by him." App. 65. This is a far cry from the vivid and pointedly argumentative remarks of the women's (and petitioner's) lawyer.
* ↑ The majority suggests that on June 16 petitioner knew about his lawyer's remarks at the women's sentencing, but didn't tell the court. Ante, at 254-255. The majority gives us no clue why petitioner would possibly want to withhold this information, if he had it. Rather, its factual conclusion rests on a single phrase in petitioner's habeas corpus testimony, and burdens this rather inarticulate petitioner with the linguistic precision of Justices of this Court. Read in context and with what I think is more common sense, petitioner's awkward phrasing clearly refers to the day "when" the lawyer's remarks were made, not when petitioner was subsequently "told" about them. I think it apparent that when petitioner sought to vacate his plea on June 16, he did not know about his lawyer's particular act of betrayal on June 2. What is clear, however, is that the judge who sentenced Dukes was fully aware of the lawyer's remarks, having heard them two weeks earlier before sentencing the women.
* ↑ The majority intimates that we are restricted to deciding this case on a "voluntariness" theory. It is true that, since precedent suggested that petitioner's only possible line of constitutional attack was to challenge the, "voluntariness" of his plea, his papers have focused on this approach, although not exclusively. See Brief for Petitioner 16, 19, 22. But we are not restricted to the precise formulation petitioner has favored. At all relevant times in this action, petitioner claimed that he should have been permitted to withdraw his guilty plea before sentencing because his lawyer was not rendering satisfactory representation. Ibid. This is the claim, raised here and below, which I would reach and decide.
* ↑ Petitioner also claimed that on the day of the plea he was in a weakened physical state because of his recent hospitalization and in a confused state of mind. This claim was explored at the state habeas hearing, where petitioner also testified that when he pleaded guilty he thought that the plea was merely "temporary." App. 149-150, 154. Although the habeas court found that petitioner's plea was "voluntarily and intelligently made," App. 46, petitioner had clearly gone through a trying week before the plea. See n. 1, supra. In my view, the uncontradicted facts about his recent hospitalization, App. 40, would themselves entitle petitioner to a "sober second thought," and to withdraw his plea before sentencing.
* ↑ Ours is not a case in which, prior to the defendant's motion to vacate his plea, the government had performed its part of a plea bargain and could not be restored to the status quo ante. Since petitioner had pleaded guilty to the original charges filed against him, no counts had been irrevocably dismissed prior to petitioner's motion to vacate. When, on the day of sentencing, petitioner refused to plead guilty to pending charges in other cases, he could not receive the benefits of an agreement concerning those pending charges; but the government was not thereby hurt. See supra, at 262. Obviously, where the government has simply agreed to recommend a specific sentence, withdrawal of the plea before sentencing would not com- promise the government's position.