Levine v. United States (362 U.S. 610)/Dissent Brennan

by William J. Brennan, Jr.

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.

The Court's opinion makes it plain that the petitioner was adjudicated guilty of criminal contempt through a proceeding from which the public was excluded. And the whole Court is agreed that, whether petitioner's right is founded on the Fifth or the Sixth Amendment, he possessed a right, guaranteed by the Constitution, that this adjudication of his guilt of crime be made in public.

But the Court concludes that despite this, the petitioner is not entitled to our judgment of reversal because he did not object in precise enough terms to this infringement of his constitutional rights. Its ruling is, I submit, a radical departure from the principles which have prevailed, and should continue to prevail, in this Court respecting the waiver of a criminal defendant's constitutional procedural rights. The key to the matter has been the defendant's consent-his 'express, intelligent consent.' Adams v. United States ex rel. McCann, 317 U.S. 269, 277, 63 S.Ct. 236, 241, 87 L.Ed. 268. The special interest of the public in the publicity of adjudications of guilt of crime has been repeatedly pointed out judicially, see United States v. Kobli, 3 Cir., 172 F.2d 919, 924; Davis v. United States, 8 Cir., 247 F. 394, 395-396; Neal v. State, 86 Okl.Cr. 283, 289, 192 P.2d 294, 297, and this has led some to argue that even the defendant's express consent should not suffice to permit proceedings to be had in secret. Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 300 P.2d 163; United Press Ass'ns v. Valente, 308 N.Y. 71, 93, 123 N.E.2d 777, 788 (dissenting opinion). But though the defendant's power to waive the constitutional protection be assumed, this consideration underscores how imperative is the requirement that the waiver of publicity be a meaningful one, based on real consent-be part of the 'defendant's own conduct of his defense.' Id., 308 N.Y. at page 81, 123 N.E.2d at page 780 (majority opinion). The waiver must be one based on the defendant's conclusion that 'in his particular situation his interests will be better served by foregoing the privilege than by exercising it.' United States v. Sorrentino, 3 Cir., 175 F.2d 721, 723.

This requirement could not by the greatest stretch of the imagination be said to have been met here. Here petitioner's counsel by no means consented to the proceedings, but repeatedly made the most fundamental objections to the procedure whereby his client was being adjudicated guilty of crime, based on the Criminal Rules and on the very provision of the Constitution which the Court today finds applicable. If the objection had been sustained, and the procedure contended for adopted, the error now laid bare would not have been committed. Whether the objection was well taken on its own grounds is irrelevant, since it is consent that must be found. The question is not whether the trial court was apprised of its error in the talismanic language the Court now finds in retrospect to have been essential. There are, to be sure, trial errors as to which specific objection is required of counsel. But where fundamental constitutional guarantees are omitted, the question is rather whether consent to proceed without the constitutional protection can be found. It is patent here that it cannot. Of course, this principle is hardly to be altered by the Court's transparent semantic device of phrasing the constitutional right of this defendant as one that did not come into existence until he made explicit request that he have its benefits. ^[1] The judgment should be reversed.

Notes

1  Apparently through the same device the Court has avoided the settled rule of the federal courts that a showing of prejudice is not necessary for reversal of a conviction not had in public proceedings. Davis v. United States, 8 Cir., 247 F. 394, 398-399; Tanksley v. United States, 9 Cir., 145 F.2d 58, 59, 156 A.L.R. 257; United States v. Kobli, 3 Cir., 172 F.2d 919, 921. See People v. Jelke, 308 N.Y. 56, 67-68, 123 N.E.2d 769, 775.