This is an appeal from the denial by the District Judge of a petition for a writ of habeas corpus. The double-barreled question presented is whether (a) Florida's arraignment procedure is such a critical stage of the criminal proceeding in a capital case that (b) the lack of counsel during arraignment establishes a per se violation of constitutional rights without any showing of prejudice. The District Judge answered this in the negative. Ours is more equivocal: (a) it is a critical stage, unless (b) there has been no likelihood of prejudice, but (c) the burden of disproving likelihood of prejudice is on the State. We, therefore, reverse and remand for further proceedings.1

The facts are simple and may be briefly stated. Petitioner was arrested, indicted, tried and convicted in 1940 for murder in the first degree, for which he received a life sentence. Twice he appeared without counsel and entered a plea of guilty, but neither of these pleas of guilty was used in any way against him. On December 2, 1940 he was formally arraigned again without counsel and changed his plea to not guilty. The Federal District Judge found that Petitioner was indigent and unrepresented by counsel at arraignment, and the State had not offered him counsel prior to, or at, arraignment. The record shows, however, that Petitioner was represented by counsel at trial. No allegation of any specific prejudice arising from the lack of counsel at arraignment was made either in the habeas petition, by evidence or argument on the hearing below, or by brief or argument before us.

Our consideration of the problem begins with Hamilton v. Alabama, 1961, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114. Charles Hamilton was accused of a capital crime in Alabama. At his arraignment on the charge he was not represented by counsel. He pleaded not guilty but was convicted and sentenced to death after a trial at which he had counsel. The Supreme Court held that arraignment in Alabama was a critical stage of the criminal proceedings because certain defenses, pleas, and motions must be raised at the arraignment, and if not raised then they 'may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.' Hamilton v. Alabama, supra, 368 U.S. at 54, 82 S. Ct. at 159, 7 L.Ed.2d at 116. Among those motions that must be made are the defense of insanity, pleas in abatement, and challenges to the composition of the grand jury. The Supreme Court read Alabama law as not allowing further pleas after arraignment 'except in the discretion of the trial judge, and his refusal to accept it is 'not revisable' on appeal.' 368 U.S. at 53, 82 S.Ct. at 158, 7 L. Ed. 2d at 116.2 The Court held that when one 'pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted. * * * The degree of prejudice can never be known. Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.' 368 U.S. at 55, 82 S.Ct. at 159, 7 L. Ed. 2d at 117.

The Supreme Court next considered this peculiar critical stage problem in White v. Maryland, 1963, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193. In that case White pleaded guilty to a capital offense at Maryland's preliminary hearing. He was not represented by counsel at that time. After obtaining counsel, White changed his plea at arraignment to 'not guilty' and 'not guilty by reason of insanity.' At trial, however, the guilty plea made earlier was introduced into evidence. The Court held that this series of events turned the Maryland preliminary hearing into as critical a stage in the proceedings as arraignment in Alabama and that White's right to counsel had been violated.

Many cases since Hamilton and White have wrestled with contentions that those cases laid down hard, inflexible rules that arraignments and preliminary hearings are critical stages per se and the absence of counsel at that time violates the Sixth and Fourteenth Amendments. See, e.g., Pointer v. Texas, 1965, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923; United States ex rel. Combs v. Denno, 2 Cir., 1966, 357 F.2d 809; Chester v. California, 9 Cir., 1966, 355 F.2d 778; Vitoratos v. Maxwell, 6 Cir., 1965, 351 F.2d 217. But we find no case that has so construed White and Hamilton. As the Second Circuit said in United States ex rel. Cooper v. Reincke, 1964, 333 F.2d 608, 'from (White and Hamilton) it is plain that there is no arbitrary point in time at which the right to counsel attaches in pre-trial proceedings.' Id. at 611. Compare Pointer v. Texas, supra, where the Court considered the differences between the pre-trial proceedings in White and Hamilton and those in Pointer (Texas preliminary hearing) to be 'significant' and White was not necessarily controlling. Indeed, the courts have consistently refused to read White and Hamilton as absolutely requiring the presence of counsel anytime the accused is required to plead to a charge. See, e.g., DeToro v. Pepersack, 4 Cir., 1964, 332 F.2d 341, cert. denied, 379 U.S. 909, 85 S. Ct. 198, 13 L. Ed. 2d 181. The problem is qualitatively one of substance: What, if anything, must be done? If not done what is lost? If lost, is the loss irretrievable? Or can the 'lost' right or privilege for all practical purposes be regained without substantial disadvantage? The problem and inquiry turn, therefore, primarily on consequences.

We must therefore focus on the specific procedure used in Florida during arraignment and the consequences that may possibly flow from the absence of counsel at that stage of the proceedings. The procedure in Florida is only slightly different from that employed in Alabama. Both by the express terms of the Florida Statutes3 and by court decisions applying them4 certain defenses must be raised at or prior to arraignment, and they can be raised later only in the discretion of the trial judge. But the Judge's exercise of such discretion, if adverse to the defendant, is liberally subject to review on appeal. Sardinia v. State, Fla., 1964, 168 So. 2d 674. This distinction, the presence of appellate review in Florida, is the only meaningful one that can be made between the Alabama and Florida procedures. Moreover, it was the statutory changes of 1939 (see note 3 supra), just a year before Petitioner's trial, which gave the arraignment its critical character. /5/

The inquiry must then become: Is this a distinction of sufficient import to call for a different result from that reached in Hamilton? We think it is.

At the very outset it is significant that with its historic6 emphasis on appointment of counsel for the arraignment the Supreme Court of Florida has 'consistently insisted that great liberality be extended by trial judges (to allow late motions).' Sardinia v. State, Fla., 1964,168 So. 2d 674.7 This duty on the part of the State Trial Judge to allow late pleas and motions and its counterpart of like liberality in the appellate review of any denials greatly ameliorates the apparent rigidity of the prescribed statutory procedure (note 3 supra). It checks the Trial Judge's rulings lest possible prejudice be done to the defendant. And for the lawyer who comes into the case after non-counsel arraignment it affords an almost limitless opportunity to demonstrate factually, Legally, or both, that harm did occur. The system is self-correcting and invites correction.

But the matter does not end here. For a capital case the Court laid down the stringent standard that 'we do not stop to determine whether prejudice resulted (since the) degree of prejudice can never be known.' Hamilton, supra, 368 U.S. at 55, 82 S. Ct. at 159, 7 L.Ed.2d at 117. Several directions may be open. One is to take a doctrinaire route that the words create an absolute. Another is to read them as descriptives in a setting which irretrievably cuts off significant defenses or advantages. This route, taken by the District of Columbia Circuit in McGill v. United States, 1965, 121 U.S.App.D.C. 179, 348 F.2d 791, is the rational one. In considering the problem of absence of counsel at a federal arraignment 'before the court concludes that there is a constitutional right it must' determine not that the accused has necessarily 'been prejudiced in fact' but rather has been 'at least exposed to a reasonable possibility of prejudice in fact.' Id. 348 F.2d at 793. By this approach doubt works in favor of the accused. But it is a reasoned doubt, a doubt shown factually to have some likely basis in fact.

Following this direction we avoid here alternative results each lacking in substance. One would be to hold that since no specific claim of even possible prejudice was asserted either factually or legally there is no likelihood at all that the Florida courts would have cut off any rights initially or would have sustained any such action had it been challenged on appeal. That would end it without more. The other would be to hold that no inquiry whatsoever is required or permitted into the possibility of prejudice. That would mandate vacating the sentence without more.

But more is required in determining whether defects of constitutional proportion have or have not taken place in a procedural structure which relaxes the apparent rigidity both initially in the Trial Court and on liberalized review in the Appellate Court. This requires a factual inquiry and determination.

This inquiry would canvass factually all of the defenses and procedural advantages which have to be first asserted at arraignment. If none were found to have any likely basis then nothing in fact would have been lost. On that hypothesis it would be immaterial whether the Trial Court would, or would not, have declined to permit belated motions or pleas or whether, on appeal, the Florida reviewing court would have reversed. On the other hand, if there is a likely possibility that any or all of the pleas, motions, claims, etc., had a plausible basis for assertion, then a determination must be made concerning the question whether it is likely that the Trial Court, or on review the Appellate Court, would have permitted their belated assertion. Affirmative answers to such latter inquiries would eliminate altogether absence of counsel at the arraignment as the basis for the claim of a sentence infected by constitutional error. It would then, at most, be transmuted into quite different considerations of trial tactics and strategy by counsel (retained or appointed), competency of counsel, knowing waiver and the like.

The protection to the accused and the full vindication of the underlying constitutional right is assured by putting the burden on the State to exclude the likelihood of harm. The burden in some situations may be heavy, McGarrah v. Dutton, 5 Cir., 1967, 381 F.2d 161, 165. But 'unless the possibility of prejudice is excluded from the record, the conviction cannot stand.' Chester v. California, 9 Cir., 1966, 355 F.2d 778, 786 (Browning, J., concurring in part and dissenting in part). On the other hand, if indeed no possibility of prejudice stemmed from the lack of counsel at Petitioner's arraignment, then no constitutional rights were violated and no grounds for granting the writ would be presented. United States ex rel. Caccio v. Fay, 2 Cir., 1965, 350 F.2d 214.

Of course such post-event judicial inquiries are more and more required in response to expanding constitutional doctrines.8 And were called for to vindicate Federal rights it matters not that the particular State has no prescribed procedure which precisely fits.9 Fortunately, the latter presents no problem since the Florida post-conviction remedy10 -- a mechanism we find so useful throughout the Circuit11 -- has special utility here. The inquiry here, both factual and legal, is what the Florida Courts would have done. The answer may dispel altogether any Federal constitutional question. And in any event it will enable the Federal Court to act with a certainty as to what the Florida Courts now say Florida Courts would have done. No matter how dedicated or enlightened three or a dozen Federal Judges, trial or appellate, might be, this inquiry would be a best guess only. Cf. Stool v. J. C. Penney Co., 5 Cir., 1968, 404 F.2d 562.

The result is that we vacate the judgment denying habeas and remand the cause for further consistent proceedings as may be appropriate after complete exhaustion of the Florida proceedings required by this opinion.12

Vacated and remanded.