Ex parte von Moltke, 5542.

• Decision Date: 24 April 1946
• Docket Number: No. 5542.,5542.
• Citation: 72 F. Supp. 994
• Parties: Ex parte VON MOLTKE.
• Court: U.S. District Court — Western District of Michigan

72 F. Supp. 994

Ex parte VON MOLTKE.

No. 5542.

District Court, E. D. Michigan, S. D.

April 24, 1946.

G. Leslie Field and William O'Neill Kronner, both of Detroit, Mich., for plaintiff.

O'BRIEN, District Judge.

In the petition filed in this cause the petitioner directly or by implication charges that the District Attorney having the case in charge and agents of the Federal Bureau of Investigation mislead her or made promises to her that which at least some degree, influenced her action in pleading guilty to the charge. I am of the opinion that these charges have now been abandoned by the petitioner but for the purposes of the record I wish to state most vigorously that there was absolutely nothing in the testimony sustaining such charges or implications. The conduct of both the officials of the District Attorney's office and the agents of the Federal Bureau of Investigation were meticulous in safeguarding the rights of the petitioner and that the record is utterly bare of any support of petitioner's contentions.

The petitioner is a woman obviously of good education and above the average in intelligence. Her knowledge of English was fluent and ample. She had discussed the case with various people before the plea of guilty was entered. In fact, at her own request, she had a conference with the chief assistant district attorney wherein she endeavored to secure from him some promises of leniency and convenience as an inducement to a plea of guilty. These advancements by the petitioner were, of course, repudiated by the district attorney and she was informed of the officials who had jurisdiction over the matter in advent of her plea of guilty.

The chief contention of the petitioner was that her waiver of her right to counsel was not competently and intelligently made. The plea was taken before Judge Arthur Lederle of this District. The evidence showed that the Judge inquired of her if she understood the charges made in the indictment. She answered in the affirmative. The Judge inquired if she desired the assistance of counsel. She answered in the negative. The Judge then inquired what was her plea. She answered guilty. In addition to this she submitted a signed waiver stating that she did not desire counsel.

A judgment cannot be likely set aside by collateral attack even by habeas corpus. In such circumstances it carries with it a presumption of regularity. Franzeen v. Johnston, Warden, 9 Cir., 111 F.2d 817. At page 819 in the above citation the court said: "The mere bald assertion (Ex parte Deatherage, et al., 9 Cir., 98 F.2d 793) by a confessed criminal, without corroboration (Harpin v. Johnston, Warden, 9 Cir., 109 F.2d 434 * * *), that he had been denied counsel is overcome when the allegations of the petition are met and controverted by the affidavits of court officials present at the time defendant's pleas were entered, to the effect that it was the uniform practice of the court, never known by the affiant to have been departed from, that the judge, without exception, would apprise all defendants appearing without counsel of their right, if without funds, to have the court appoint counsel for them and that the defendant, after having the indictment read, admitted that he understood the nature of the charge therein contained, and pleaded guilty, and at no time made request for the assistance of counsel. * * * When we say `the burden of proof rests upon petitioner to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel,' we mean that petitioner must make a showing sufficient to overcome the presumption of regularity which attaches to a judgment of a court. The contention here made does not carry with it such quality of proof. Moreover, we do not hold that the records of the trial court must show that the defendant was offered the assistance of counsel and that he refused (although this would be the better practice), such holding would be shifting the burden of proof from petitioner to the court, upon a mere assertion of the petitioner. The defendant could have refused the court's offer of counsel and that fact still not appear of record. We also take cognizance of the fact that the appellant pleaded guilty in both instances—he admitted commission of the crimes of which he was charged, and it is not asserted in the record that he was unable to understand the charges. Moreover, we do not lose sight of the important distinction between a plea of guilty and not guilty; a layman who pleads his innocence would be put to disadvantage in attempting to conduct his own...