BROWNING, Circuit Judge.
Appellant was convicted in the Superior Court of Los Angeles County of murder in the first degree. He was sentenced to death. After exhausting state remedies,1 appellant filed a petition for habeas corpus in the District Court. That court denied the petition after oral argument. Appellant then filed an identical petition in this Court. We declined to entertain it, transferring the application back to the District Court for "hearing and determination."2 The District Court again dismissed the petition on oral argument, rejecting affidavits offered by both sides and declining to receive further evidence.
Appellant alleged that he had been denied effective aid of counsel at his trial in the state court. He alleged that through lack of investigation and preparation his court-appointed trial counsel failed to discover and present substantial defenses which appellant had to the charge against him. These defenses were said to be (1) that at the time of the homicides appellant could not have had the specific intent required for first-degree murder; and (2) that certain confessions, which were the sole evidence of appellant's guilt, were obtained in violation of his constitutional rights. He further alleged that trial counsel inexcusably failed to discover and present evidence in mitigation of sentence, although substantial evidence was available.
In the court below, the State took the position that the petition for habeas corpus "should be decided upon the basis of the Court's evaluation of the petitioner's allegations in the light of [the] record of the state court proceedings on file with this court." The District Court adopted this view, and declined to receive additional evidence. The court entered an order stating that it had examined the petition, the return, the traverse, and the transcripts of the state court proceedings, and that there was "nothing in the record" to sustain appellant's allegation that he had been denied effective aid of counsel.
We note at the outset that appellant's allegations of fact outside the trial record must be considered in determining whether the petition alleged a denial of appellant's constitutional right to the effective aid of counsel.3 A contrary rule would fall short of protecting this right. When inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.4 If the petition, including appellant's allegations of fact outside the trial record, presents grounds which would entitle appellant to relief, he should be afforded an opportunity to support his allegations by proof.5 With this in mind, we turn to the detailed allegations of the petition.
A. The factual allegations in support of a defense based upon appellant's mental state when the crime was committed may be summarized as follows.
Electroencephalographic (EEG) examinations made subsequent to appellant's conviction revealed organic brain damage.6 His prior medical history contained episodes of head injury and infantile illness from which the brain damage could have resulted;7 there were no such incidents subsequent to the homicides. Medical opinion indicated that the damage was such as to render appellant "definitely seizure prone";8 and was "of a type often associated with abnormal and otherwise unexplainable conduct."9 There was psychiatric opinion based upon post-conviction evaluations that appellant, while not "insane," had a compulsive personality marked by strong emotional instability.10 There was substantial evidence of hypersensitivity to alcohol;11 and the record established that immediately prior to the homicides appellant had drunk heavily.12 There was competent medical opinion to support the view that, in the light of these and other factors, appellant was incapable of entertaining the specific intent required for first-degree murder at the time and in the circumstances of the homicides.13
B. The following factual allegations were made in support of the inadmissibility of the confessions.
Appellant was arrested on a Tuesday evening. He was taken to the police station and booked. He told the arresting officers he wished to contact an attorney; they said he could get his attorney "later." He repeated this request twice more in the course of the evening. The requests were denied. The following morning he again asked to see his attorney; the officers said, "You'll see him."14
Appellant was questioned briefly the evening of his arrest. The following day he was subjected to lie detector tests and questioned intermittently from about 9:00 a. m. until about 2:30 in the afternoon when he first confessed. This confession, much longer than those subsequently taken, was recorded, but was later destroyed and was not introduced at trial. After further questioning, a typewritten statement was prepared which appellant signed and which was introduced at trial. The questioning resumed the following day. A tape-recorded confession taken that afternoon was also introduced at trial.
At the time of his arrest appellant was employed as a service station attendant. He had a tenth grade education, having failed the eleventh grade. He was thirty-nine years old. As noted, his personality was characterized by "emotional instability" and "neurotic and dissociative features."15 He did not know of his right to remain silent when questioned by the police. The officers did not advise him of his right; he was told that his interest lay in telling them his story fully and accurately before trial.16
From the final refusal of his request to contact a lawyer, appellant inferred that he would not be permitted to see a lawyer until he confessed. Before he confessed, one of the officers told him they had "other ways" to make him talk, which appellant took as a threat of violence. Appellant states that he confessed in fear, and in ignorance of his rights; that he had no clear recollection of the critical events surrounding the commission of the crime, and that the details which appear in the recorded confessions were suggested to him by the officers as the way things must have happened.17
C. The factual allegations in support of the contention that trial counsel failed to investigate and present appellant's defenses were as follows.
Appellant's trial counsel, a Deputy Public Defender, was appointed shortly after arraignment. Appellant told trial counsel that he knew nothing of the law, and placed himself entirely in trial counsel's hands.18 Trial counsel initially recommended to appellant that he plead guilty. In the three-and-a-half months between arraignment and trial, trial counsel saw appellant on three occasions for a total of about an hour. Two of the conferences were devoted largely to matters other than appellant's defense.19
Trial counsel was aware of appellant's history of head injury and extended unconsciousness and of the heavy drinking that occurred on the night of the homicide.20 Nonetheless, he made no effort to elicit appellant's personal history, made no inquiries of appellant's family, friends or employers (although furnished the names by appellant),21 and failed to arrange a private examination of appellant by an independent psychiatrist (although funds were available for that purpose), because he mistakenly supposed that the communications would not be privileged.22 Trial counsel was told of the circumstances surrounding the taking of the confessions, including the refusal of appellant's prior requests for access to counsel,23 but he did not pursue the matter.24 Trial counsel did not exercise his right to obtain a copy of the initial recorded interrogation of appellant by the police, since destroyed, although it contained material of value to the defense.25
The only evidence offered at trial to prove appellant's commission of the homicides was appellant's two confessions, but trial counsel made no effort to exclude them, announcing "no objections" to the admission of the first, and stipulating to the admission of the second. When the State rested, appellant's trial counsel approached the bench with appellant, stating that he did not intend to put appellant on the stand and "would like an expression of consent or lack of consent for the record at this time." Appellant consented. Trial counsel then rested for the defense, calling no witnesses as to appellant's mental condition or any other matter. Trial counsel did not consult with appellant during the trial or between court sessions.26
Trial counsel argued in summation that appellant lacked the necessary intent for first-degree murder, relying entirely upon the immediate details of the crime as indicated in the confessions, and by the physical circumstances. None of the facts and contentions summarized above relating to the admissibility of the confessions and the bearing of appellant's mental condition and intoxication upon the issue of specific intent was presented to the court or jury either through cross-examination, by affirmative evidence, or in argument.
The separate hearing on penalty required by California law27 was scheduled to be held four days following appellant's conviction. The California statute provides that "Evidence may be presented at the further proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant's background and history, and of any facts in aggravation or mitigation of the penalty."28 Appellant's trial counsel had assumed from the outset that a first-degree conviction was probable,29 yet he made no preparation for the penalty hearing. He did not see appellant during the four days between verdict and hearing. As the hearing was about to convene he spoke with appellant for five minutes, telling him that he "ought not to be disappointed" if he received a death sentence.
The State offered evidence in aggravation of the penalty.30 Appellant's trial counsel offered none in mitigation. When the State rested, appellant's counsel approached the bench with appellant, stating, "I would like the record to show that I have advised the defendant that, in my opinion, we have no evidence which would be of assistance to him in mitigation, and for that reason, I have recommended that he not testify." Appellant was asked to state for the record that counsel had so advised him and that he did not wish to testify; he responded, "That's correct." Trial counsel then rested. Substantial affirmative evidence in mitigation could have been secured by reasonable diligence,31 but none was introduced because, as trial counsel stated, he was not aware that any was available.
Trial counsel's summation challenging particulars of the State's argument in aggravation of sentence could only have prejudiced appellant. The prosecution argued that appellant was "a madman, a sex fiend"; trial counsel responded that "there is not one iota of evidence concerning this man's mental condition. * * * He is presumed to be sane." The prosecutor argued that appellant had shown no remorse; trial counsel responded that, although appellant had "concededly lied" when first questioned, he had then determined to tell the truth, though perhaps this decision was "self serving" and reached "only * * * because he thought it would help him," and the jury should consider the fact that he had cooperated.
The test to be applied in determining the legal adequacy of the allegations of appellant's petition is readily stated: "The requirement of the Fourteenth Amendment is for a fair trial";32 the due process clause "prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right."33 Compliance with this standard required that appellant, charged with a capital offense, be represented at trial by counsel.34
But the constitutional requirement of representation at trial is one of substance, not of form. It could not be satisfied by a pro forma or token appearance.35 Appellant was entitled to "effective aid in the preparation and trial of the case."36
This does not mean that trial counsel's every mistake in judgment, error in trial strategy, or misconception of law would deprive an accused of a constitutional right.37 Due process does not require "errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance."38 Determining whether the demands of due process were met in such a case as this requires a decision as to whether "upon the whole course of the proceedings," and in all the attending circumstances, there was a denial of fundamental fairness;39 it is inevitably a question of judgment and degree.
From the allegations of the petition, the defenses available but not presented by trial counsel appear to have been substantial.
Under California law "on the trial of the issues raised by a plea of not guilty to a charge of a crime which requires proof of a specific mental state, competent evidence that because of mental abnormality not amounting to legal insanity defendant did not possess the essential specific mental state is admissible." Such evidence "is received not as a `complete defense' negating capacity to commit any crime but as a `partial defense' negating specific mental state essential to a particular crime."40 Evidence as to appellant's mental state was also relevant to the question of penalty, and might well have been persuasive.41
The allegations of the petition made out a prima facie case for the excludability of appellant's confessions under the rule announced in Crooker v. California,42 apart from whether appellant's "will was overborne."43 As the court stated the rule in Crooker, "state refusal of a request to engage counsel violates due process * * * if [the accused] is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of `that fundamental fairness essential to the very concept of justice.'"44 And as we held in Griffith v. Rhay, such prejudice is shown if from all the circumstances it appears that "it could not reasonably be inferred that [the accused] understood that he had the right to remain silent," that counsel "would probably * * * have advised [the accused] to refuse to talk," and that the statement given by the accused in the absence of advice of counsel was of a character clearly contrary to the accused interests.45 The allegations of the present petition met this test.
Facts are alleged from which it would appear that these potential defenses would have suggested themselves to a reasonably diligent trial counsel. The defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice.46 The failure of trial counsel to contact obvious witnesses lends further credence to the allegation that counsel did not undertake the investigation and research essential to adequate trial presentation. In any event, it would not seem proper to dispose of so substantial a showing "by a resort to speculation and surmise"47 as to possible explanations for trial counsel's inaction.
Upon an examination of the whole record, we conclude that appellant alleged a combination of circumstances, not refuted by the record, which, if true, precluded the presentation of his available defenses to the court and the jury through no fault of his own, and thus rendered his trial fundamentally unfair. Appellant does not complain that after investigation and research trial counsel made decisions of tactics and strategy injurious to appellant's cause; the allegation is rather that trial counsel failed to prepare, and that appellant's defense was withheld not through deliberate though faulty judgment, but in default of knowledge that reasonable inquiry would have produced, and hence in default of any judgment at all.48 The omissions alleged by appellant "were not mere mistakes of counsel or errors in the course of the trial. If true, they constituted a total failure to present the cause of the accused in any fundamental respect. Such a proceeding would not constitute for the accused the fair trial contemplated by the due process clause * * *."49 It follows that appellant must have an opportunity to support the allegations of his petition, by proof, in a hearing before the District Court.50
It should be noted that none of the reasons which have sometimes prompted denial of a factual hearing on allegations of inadequate representation by counsel51 are present in this case. The ease with which plausible but unfounded allegations may be made against trial counsel, the temptation of the convicted to blame their attorneys rather than themselves, and the weakness of the threat of perjury against those confined in prison or facing execution did not contribute to the allegations of this petition which was prepared and carefully documented by responsible counsel. The reputation of the Office of the Public Defender of Los Angeles County and of trial counsel in this case negated any possibility that available defenses were deliberately withheld to win delay and give accused two chances to prevail. The stresses imposed upon state-federal relations by differing determinations of the same factual issues52 could not arise here, for no state court had considered the factual issues which the federal District Court will now determine for the first time on remand.
Appellant's petition also asserted that appellant's conviction was constitutionally invalid solely because of the admission of the confessions, and independently of the infirmity arising from the lack of effective assistance of trial counsel.
As we have said, the allegations of the petition made a prima facie showing that the confessions were obtained in such circumstances that a conviction based upon them would violate due process. The State urges, however, that because appellant's trial counsel failed to object to the admission of the confessions at trial, appellant may not raise this question in a habeas corpus proceeding.
An accused is normally bound in subsequent habeas corpus proceedings by the act of his counsel in waiving a constitutional right during trial,53 but this is not invariably true.54 The issue of whether the confessions were obtained in violation of appellant's constitutional rights, and, if so, whether appellant was bound by his trial counsel's consent to their admission, raises questions of fact and law inseparable from those involved in determining whether appellant was afforded effective aid of counsel. Since it is unlikely that on remand the former issue will be presented as an independent ground of decision, we believe it wise to withhold consideration of the problem at this time.
Remanded for further proceedings.