William J. Brennan, Jr.

“ In contrast, the Child Molester Act empowers the sentencing judge in a proper case to commit the convicted defendant to a Florida state hospital for treatment and rehabilitation. [4] That law also permits the accused to petition for a psychiatric or psychological examination for the purpose of assisting the court in the trial of the case. [5]
There are thus present considerations of a sort often deemed sufficient to require the conclusion that a trial for crime without defense counsel did not measure up to the requirements of the Fourteenth Amendment. ”

“ Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.
Neither Bute v. Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 nor Moore v. Michigan, supra, is in any way inconsistent with our holding and disposition here. In Bute, in which the petitioner pleaded guilty without having requested counsel, it was alleged that he had not been advised of his right of counsel. ”

“ Of course, the validity of such presumptions is immediately called in question because the accused has no way of protecting against them during his trial except by requesting counsel-a formality upon which we have just said his right may not be made to depend. Nor is it an answer to say that he may counter such presumptions on collateral attack by showing-if he can-that he had not in fact agreed, or been willing, to be tried without counsel. To cast such a burden on the accused is wholly at war with the standard of proof of waiver of the right to counsel which we laid down in Johnson v. ”