Department of Justice Circular
Re: Habeas Corpus Cases



June 8, 1939.



Re: Habeas Corpus Proceedings by Convicts Alleging
Denial of Right of Representation by Counsel

More than thirty habeas corpus proceedings have been brought by Alcatraz inmates on the ground that these inmates were deprived of their constitutional right of representation by counsel.

United States Attorney Frank J. Hennessy of San Francisco, advises that he is experiencing some difficulty in securing the facts upon which to make a proper return in each of these cases. Some United States Attorneys hold the view that the decision of the Supreme Court of the United States in Johnson v. Zerbst, 304 U.S. 458, has no application where the defendant pleaded guilty and was sentenced without trial. This view is deemed wholly erroneous by the Department. The constitutional guarantee of the right of representation by counsel is regarded just as essential to a defendant in the proceedings for entry of judgement and sentence on a plea of guilty as where that defendant stands trial. The judgement itself should recite that the defendant was informed of his constitutional rights and, upon being asked whether he desired representation by counsel, replied that he did not. It is for this reason that the Department's uniform Judgement Form for use in criminal cases makes provision for the inclusion of this information in the judgement as entered. This Judgement Form is now in use in a large majority of the Districts.

It is recognized that in many cases the record does not show that the defendant pleading guilty waived his right to be represented by counsel. You are, therefore, directed to give to the United States Attorney Henessy and to any other United States Attorney faced with a similar situation your fullest cooperation in developing any facts that will enable such United States Attorney to show whether in fact a convicted person was informed of his constitutional right to representation of counsel and intelligently [page two] waived such right. It is of the utmost importance that prisoners convicted of serious offenses should not succeed in securing their release on habeas corpus because the United States Attorney in the District in which the petition was filed was not furnished adequate factual information upon which to defeat such a petition.

Please acknowledge receipt of this circular.


For the Attorney General,

Acting Assistant Attorney General