The opinion
STEWART, Circuit Judge
(dissenting).
I.
Late in the afternoon of August 5, 1942, James Henderson learned from a friend that the police of Mount Clemens, Michigan, were looking for him in connection with an alleged rape that had occurred a few days earlier. He went to the office of the State Police, identified himself, and was taken into custody. 1 About 7:30 that evening he was turned over to the Mount Clemens police, and at about 8:30 p. m. was delivered by them to the Mount Clemens jail. Two and a half hours later he had been sentenced to prison for the rest of his life.
The brief period Henderson spent in the Mount Clemens jail was an eventful one. He was registered and fingerprinted. He was taken to the office of the police chief in the jail, where he was questioned by the chief, by his assistant, and by an assistant prosecuting attorney. At about 9:30 P.M. he signed a typewritten confession. Then, arraigned before a justice of the peace who had been summoned to the jail, he waived examination, and on default of bail of $100,000 was ordered held “until the present term of the Circuit Court in and for said County to answer to such information as might be filed against him.” The assistant prosecuting attorney next prepared and lodged an information charging Henderson with the crime of rape. Finally, at about 10 o’clock Henderson was taken to the courthouse across the street from the jail.
Court was convened at 10:20 p. m. The information was read, and Header-son pleaded guilty. He was then questioned as to the circumstances of the alleged offense by the same assistant prosecutor who had obtained his confession scarcely an hour earlier. He was also interrogated by the judge. The only others in the courtroom were the police chief, the two police officers in whose custody he had been since 7:30 p. m., another prosecutor, and the court stenographer. At no time during these proceedings in court was Henderson, thus friendless and alone, advised by the judge or by anyone else of a right to counsel, asked if he wanted counsel, offered the assistance of counsel, or given an opportunity to obtain counsel. When the interrogation was concluded the judge imposed sentence. Henderson was then hustled to another jail in a neighboring county where he was held overnight. On the following day he was transferred to the state prison to spend the remainder of his life.
II.
What was the reason for these speedy proceedings in the dead of night? The motivation seems clearly to have been fear of possible mob violence. 2 The rec *386 ord shows that this fear was communicated to the two officers charged with guarding Henderson. It was communicated to one of the assistant prosecuting attorneys. It was also communicated to the press, and thereby to the general public. 3
At the hearing on the motion for a new trial Henderson testified that he too had been told of the authorities’ fear of mob violence:
“A. I can’t remember all the questions that was asked me. I do know during the course somebody was questioning me somebody would say now and then about hurry up and talk, they are not going to be responsible for me if the mob breaks in, they are not going to lose their lives protecting me.”
The Michigan courts have found, however, that this testimony of Henderson’s was false, and that the fear of mob violence which pervaded the jail and courtroom on the night he was sentenced was in no way communicated to him. That finding, made upon substantial evidence after a full hearing, was accepted by the district court and must be accepted here. This was conceded in oral argument by Henderson’s counsel. Further discussion of this aspect of the case would therefore be bootless.
III.
It is upon an issue quite different that my dissent is based. I am convinced that the undisputed circumstances made this a case where the intervention of counsel, unless intelligently waived by Henderson, was an essential element of the due process of law guaranteed by the Fourteenth Amendment of the United States Constitution.
It is of course settled that Due Process does not require that counsel be made available to every defendant in a state criminal proceeding. Betts v. Brady, 1942, 316 U.S. 455 , 62 S.Ct. 1252 , 86 L.Ed. 1595 . The principles which determine when it is that federal organic law does require a state to give a criminal defendant in a noncapital case the opportunity to obtain the assistance of a lawyer have been elaborated in many decisions of the Supreme Court. Smith v. O’Grady, 1941, 312 U.S. 329 , 61 S.Ct. 572 , 85 L.Ed. 859 ; Rice v. Olson, 1945, 324 U.S. 786 , 65 S.Ct. 989 , 89 L.Ed. 1367 ; Canizio v. People of State of New *387 York, 1946, 327 U.S. 82 , 66 S.Ct. 452 , 90 L.Ed. 545 ; De Meerleer v. People of State of Michigan, 1947, 329 U.S. 663 , 67 S.Ct. 596 , 91 L.Ed. 584 ; Foster v. People of State of Illinois, 1947, 332 U.S. 134 , 67 S.Ct. 1716 , 91 L.Ed. 1955 ; Gayes v. State of New York, 1947, 332 U.S. 145 , 67 S.Ct. 1711 , 91 L.Ed. 1962 ; Bute v. People of State of Illinois, 1948, 333 U.S. 640 , 68 S.Ct. 763 , 92 L.Ed. 986 ; Wade v. Mayo, 1948, 334 U.S. 672 , 68 S.Ct. 1270 , 92 L.Ed. 1647 ; Gry-ger v. Burke, 1948, 334 U.S. 728 , 68 S.Ct. 1256 , 92 L.Ed. 1683 ; Townsend v. Burke, 1948, 334 U.S. 736 , 68 S.Ct. 1252 , 92 L.Ed. 1690 ; Uveges v. Commonwealth of Pennsylvania, 1948, 335 U.S. 437 , 69 S.Ct. 184 , 93 L.Ed. 127 ; Gibbs v. Burke, 1948, 337 U.S. 773 , 69 S.Ct. 1247 , 93 L.Ed. 1686 ; Quicksall v. People of State of Michigan, 1950, 339 U.S. 660 , 70 S.Ct. 910 , 94 L.Ed. 1188 ; Palmer v. Ashe, 1951, 342 U.S. 134 , 72 S.Ct. 191 , 96 L.Ed. 154 ; Chandler v. Fretag, 1954, 348 U.S. 3 , 75 S.Ct. 1 , 99 L.Ed. 4 ; Massey v. Moore, 1954, 348 U.S. 105 , 75 S.Ct. 145 , 99 L.Ed. 135 ; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 1956, 350 U.S. 116 , 76 S.Ct. 223 , 100 L.Ed. 126 ; Moore v. Michigan, 1957, 355 U.S. 155 , 78 S.Ct. 191 , 2 L.Ed.2d 167 . It must be shown that for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in the defendant’s conviction. Foster v. People of State of Illinois, 332 U.S. at page 137, 67 S.Ct. at page 1718; Gibbs v. Burke, 337 U.S. at page 781 , 69 S.Ct. at page 1251 ; Quicksall v. People of State of Michigan, 339 U.S. at page 665 , 70 S.Ct. at page 913 . Due process requires that counsel be afforded where it is shown that the lack of a lawyer’s assistance made the state criminal proceedings so apt to result in injustice as to be fundamentally unfair. Uveges v. Commonwealth of Pennsylvania; Moore v. Michigan; De Meerleer v. People of State of Michigan, all supra.
The mere recital of the headlong succession of events which culminated in the imposition of Michigan’s extreme penalty in this case is enough to evoke grave doubt that the fundamentals of due process of law could have been observed without counsel to assist the defendant. A closer inspection of the record is even more revealing. For the record clearly shows that the help of a lawyer was essential to protect Henderson’s rights.
The gloss which Michigan decisions have put upon the rape statute of that state has made the question of a defendant’s guilt of that offense far from the simple matter that an ignorant layman might be led to believe. United States ex rel. Savini v. Jackson, 2 Cir., 1957, 250 F.2d 349, 353 . Thus the Michigan Supreme Court has held that to constitute rape “resistance to the utmost” is an essential element. People v. Geddes, 1942, 301 Mich. 258 , 3 N.W.2d 266, 267 . It has held that if there has been “consent1 by the prosecutrix during any part of the act” the offense of rape cannot be committed. Brown v. People, 1877, 36 Mich. 203 . In Michigan rape cases the court must, if requested by counsel, instruct the jury on each of the three cognate offenses of rape, assault with intent to commit rape, and simple assault. People v. Jones, 1935, 273 Mich. 430 , 263 N.W. 417 . Noting these distinctions which the Michigan courts have made, the Court of Appeals for the Second Circuit recently made an observation which applies directly here: “If in contemplation of state law a lay juror, to understand the essentials of the offense charged, needs such instruction, surely the lay accused, under the pressures normally attendant upon arraignment, needed more than the legal language of the formal information as it was read to him in the courtroom in order intelligently to formulate a plea.” United States ex rel. Savini v. Jackson, 250 F.2d 349, 353 . Cf. Mullreed v. Bannan, D.C.E.D.Mich.1956, 137 F.Supp. 533 .
Instead of giving Henderson any intimation of the elements of the crime of which he was charged, and its included cognate offenses, the judge and the assistant prosecutor by a series of leading questions constructed the case against *388 him. The following interrogation is illustrative :
“Q. Now, James, the first time you had intercourse with her you know she was in fear of her life because of acts and words spoken at that time, is that right? A. That is correct.
“Q. She had no reason to presume other than what you would use violence to get her to have intercourse? A. That is correct.
“Q. She was in fear of her life at that time and that is the reason she submitted to your act ? A. Yes.”
Moreover, the entire transcript of the proceedings at the night court session reveals that the judge assumed the truth of the statement which had been made by the complaining witness, although she was not present, and although there is nothing to indicate that the judge had ever even seen her. At the very end of the interrogation, and a moment before sentencing the prisoner to life imprisonment, the judge stated: “If her story is true it is even worse than your story here today. There is no reason for doubting her story.”
Finally, it is clear from reading the transcript that at the time he entered his plea of guilty Henderson did not know that it could result in a life sentence. When this fact was indicated to him late in the proceedings and after his responses to the judge’s and prosecutor’s leading questions had placed him in a completely irretrievable position, the vital information was imparted in a most tentative and hypothetical way:
“Q. You know it carried a life sentence, do you ? A. I didn’t know that, no sir, I didn’t know that, sir.
“Q. Do you have any idea what kind of sentence it carries ? A. Somewhat, sir, I have heard of cases, sir.
“Q. What? A. I have heard of several cases, sir.
“Q. The fact it might carry a life sentence, that make any difference in your plea of guilty? A. I wouldn’t change my plea because I know I am guilty; no use trying to run around —trying to fight it.”
This record thus convinces me that the absence of counsel operated to deny Henderson the elements of due process of law under the circumstances of this case. Had a lawyer been available to assist Henderson, he first of all could have forestalled the precipitous haste of the proceedings. He could have investigated the prosecuting witness and checked her story against the surrounding circumstances. He could have investigated the possibility that, if not completely innocent, Henderson was not guilty of rape, but of a lesser included offense under Michigan law. He could have unequivocally explained to Henderson the significance and consequences of a guilty plea. He could have seen to it. that any hope for Henderson was not demolished by leading questions.
IV.
A suggestion which seems to pervade the majority opinion, unless I have missed the point, is that even if counsel had been provided, Henderson would after all probably have been convicted anyway. The complete answer to that suggestion, if suggestion it is, is well expressed in the recent words of Circuit Judge Pope: “It is my interpretation of the decisions of the Supreme Court that it will not compromise with a denial of a constitutional right. Thus it is inconceivable to me that that Court would listen to an argument that although the accused had been improperly denied his right to assistance of counsel, yet the evidence of the defendant’s guilt was so overwhelming that counsel could not have done him any good; * * * When a defendant has been denied due process, his guilt or innocence is irrelevant. He has not been tried by civilized standards, and cannot be punished until he has been.” Riser v. Teets, 9 Cir., 1958, 253 F.2d 844, at 847 (dissenting opinion).
The point has also been made throughout the post conviction proceedings, state and federal, that Henderson was no doubt *389 completely aware of his legal rights and defenses because he had gone through the eleventh grade in an orphan’s school, was twenty-five years old, and “was familiar with criminal proceedings.” In the light of the record this reasoning is unconvincing. Henderson’s previous experience with court proceedings, about which so much has been made, was hardly instructive. The entire evidence on this point came from Henderson and was as follows:
“Q. What did you do which caused your arrest? A. Well, I was on my way out to Ford’s one morning walking out West Fort Street, and about four o’clock the police picked me up and said, told me stick them up, and I asked what was the matter and they said, ‘You are the one, all right,’ and I said, ‘One what?’ They said I had held up a woman and took some money. I didn’t have no money on me at that time because when I left my uncle’s house I didn’t have a red cent on me, so carried me back to the Forest Street Station. That is the first time I was ever in jail in my life. I didn’t know just what to do at the time. They carried me back and took me out and talked to me and carried me back again and called me out and talked to me and talked to me again and they carried me in a little room and I got afraid and pleaded guilty and they carried me to Central Station about nine that morning and I changed my plea from guilty to not guilty and they sent me State’s lawyer and he listened to the case and told me to plead guilty and I would get off easy and I did plead guilty and sentenced me from one to ten.”
His one other brush with the law was even less edifying:
“Q. Have you ever had any difficulty of a sexual nature with any other person? A. Well, one time I went to a disorderly house, so next day I didn’t know' the girl was under age and her mother tried to have me arrested. I was over at Berea. I went over to Cleveland w'here they wanted me at police headquarters and she told them to turn me loose; was no charge against me because this girl was in a disorderly house.”
Y.
If then, as I think, the record conclusively shows that for want of benefit of counsel an ingredient of unfairness actively operated in the process that resulted in Henderson’s confinement, the question that remains is whether or not he waived the right to the assistance of counsel.
The Michigan courts apparently found that there was such a waiver. But in Michigan the rule seems to be that a plea of guilty without benefit of counsel itself amounts to a waiver of the right to counsel. In re Elliott, 1947, 315 Mich. 662, 668-669 , 24 N.W.2d 528 ; People v. De Meerleer, 1946, 313 Mich. 548 , 21 N.W.2d 849 , reversed 1947, 329 U.S. 663 , 67 S.Ct. 596 , 91 L.Ed. 584 . As aptly stated in the appellant’s brief, the application of that rule in the present case would end consideration of the Constitutional issue at the very point where it should begin. See People v. Henderson, 343 Mich. 465 , 72 N.W.2d 177 .
In any event, such a rule has no place in the standard of the Federal Constitution. A plea of guilty without benefit of counsel is not of itself a waiver of the right to counsel under the Fourteenth Amendment. Rice v. Olson, 1945, 324 U.S. 786, 788 , 65 S.Ct. 989 , 89 L.Ed. 1367 ; Smith v. O’Grady, 1941, 312 U.S. 329 , 61 S.Ct. 572 , 85 L.Ed. 859 ; Williams v. Kaiser, 1945, 323 U.S. 471 , 65 S.Ct. 363 , 89 L.Ed. 398 ; Tompkins v. State of Missouri, 1945, 323 U.S. 485 , 65 S.Ct. 370 , 89 L.Ed. 407 ; De Meerleer v. People of State of Michigan, 1947, 329 U.S. 663 , 67 S.Ct. 596 , 91 L.Ed. 584 ; Foster v. People of State of Illinois, 332 U.S. 134, 137 , 67 S.Ct. 1716 , 91 L.Ed. 1955 ; Uveges v. Commonwealth of Pennsylvania, 1948, 335 U.S. 437, 441 , 69 S.Ct. 184 , 93 L.Ed. 127 ; Commonwealth of Pennsylvania ex rel. Herman v. *390 Claudy, 1956, 350 U.S. 116, 122 , 76 S.Ct. 223 , 100 L.Ed. 126 .
The only suggestion in the record that Henderson waived his right to counsel appears in the testimony of one of the police officers given in 1953 at the hearing upon Henderson’s second motion for a new trial:
“Q. Did you or anyone in your presence question him at the time he was put in the cell ? A. I "didn’t question him myself. The Chief at that time asked him—
“Q. Who was that? A. Asked him if he had an attorney or wanted an attorney.
“Q. What did he say? A. Said no, he would like to get it over with as soon as possible.
“Q. Who was the chief? A. Arthur Rosso.”
Arthur Rosso was dead at the time of the hearing.
On the other hand, Henderson testified at the same hearing that when arraigned before the justice of the peace in the jail he asked for a lawyer, and that his request was refused:
“Q. Did you say anything to Mr. Jeannette? A. I asked him why they wouldn’t let me call my brother and why wasn’t it possible to have an attorney. He told me there was nothing he could do; his hands were tied.”
This testimony was uncontradicted. 4
In view of the judge’s failure to advise Henderson of his right to counsel at the night proceeding of the court — his failure to make any inquiry whatsoever upon the subject — and in view of Henderson’s uncontradicted testimony that his request for counsel had been denied, I think the burden of showing that he did not waive his right to counsel has been sustained.
The uncorroborated statement of the police officer as to what the chief asked Henderson in his jail cell was insufficient in my opinion to support a conclusion that Henderson was either apprised of or intelligently waived a Constitutional right which the circumstances of this case made such a vital one. “Where the right to counsel is of such critical importance as to be an element of Due Process under the Fourteenth Amendment, a finding of waiver is not lightly to be made.” Moore v. State of Michigan, 355 U.S. 155, 161 , 78 S.Ct. 191, 195 , 2 L.Ed.2d 167 .
******
The prompt and vigorous administration of the criminal law is to be commended and encouraged. But swift justice demands more than just swiftness. Fully mindful that the extraordinary writ of habeas corpus is to be vigorously guarded and sparingly used, I would set aside the district court’s order of dismissal with directions to issue the wxfit.
. “Q. And did anything arise there which prompted you to go to the state police? A. Mrs. Smith showed me a newspaper article stating that there was a warrant out for me, which alleged the crime of rape, and the state police had been in her house looking for me.
“Q. She told you that? A. Yes.
“Q. So what did you then do? A. I read the article and asked if she believed I had done it and she said no and she asked me what I was going to do and I told her there was nothing else for me but to go down and turn myself in and I told her then, ‘I will see you on Friday.’
“Q. Did you go to the state police office ? A. Directly.
“Q. How did you go there? A. Walked.”
. The record suggests only one other possible reason for rushing through the proceedings, a reason considerably less commendable. During argument of the motion for a new trial several years *386 later, the trial judge observed: “ * * * As I say, some ten years ago or better this practice of entertaining pleas of guilty during the evening hours was not infrequent, although no longer practiced. Now, the purpose back of that was purely one of disposing of the case promptly; secondly, for the reason that it is a known fact that a party arrested and accused, associating over in jail any length of time with more experienced criminals, very often was talked into fighting the case regardless whether he was guilty or innocent, and very often advised that it cost him nothing to put up a fight, why plead guilty, the State will appoint an attorney.”
. Two days after the alleged attack Mount Clemens’ only newspaper had published an article which stated: “Meanwhile, Rosso said that a half-dozen irate Harrison township men' — neighbors of the woman — visted the jail last night where they threatened to avenge the crime. ‘If you’ve got that---, we want him,’ Rosso quoted them as saying.”
The day after Henderson’s arrest and sentence the same newspaper carried an article which stated: “Moving with lightning rapidity to avoid possible mob violence, and at the same time, to mete out swift justice, Mount Clemens courts and law enforcement officers combined late last night to send a 27 year old Negro to prison for the rest of his natural life following his confession to having twice attacked a 26 year old white Harrison township housewife.
“To minimize the possibility of violence the man, James Henderson, was rushed to Pontiac for safe-keeping overnight and was picked up there for Macomb County Deputy Sheriffs this morning for transfer to the Southern Michigan Prison at Jackson.” * * * “Held [the prosecutor] and Police Chief Arthur I. Rosso, both said that rumblings indicated possible violence from incensed Harrison Township acquaintances of the outraged white woman had prompted them to rush through arraignment and sentence of the confessed attacker.”
. Henderson had two brothers living in Mount Clemens. He was acquainted with the justice of the peace, Mr. Jeannette, because his cousin had worked for Mr. Jeannette’s mother. Jeannette’s was the one familiar face that Henderson saw during the whole night.