with whom
CUMMINGS, Chief Judge, joins.Hard cases, as we all know, make bad law. This is an exceedingly hard case, as Judge Pell’s recitation of all the gory details makes clear. And bad law cannot be far behind when the fundamentals of our criminal jurisprudence must be so egregiously slighted. I am sympathetic with the majority’s dilemma when asked to free (subject to retrial) the apparent perpetrator of a gruesome crime in the name of a legal theory. However, the theory that a person accused of a crime is innocent until found guilty beyond a reasonable doubt by a jury of his peers is, I think, at the foundation of the Anglo-American system of criminal law; it responds to the fundamental demands of justice; and it must be closely guarded against erosion even in as difficult a situation as this one. Certainly the amorphous concept of harmless error, ultimately relied upon by the majority, should not be used to nullify the constitutional imperatives underlying our system of criminal law.
The majority here seriously mischaracterizes the issue in this case when it states the question on appeal as “whether the district judge correctly found that Ross had not contested his commission of the homicide but had relied solely on a defense of insanity,” ante at 1. The real question before us is whether the trial court’s failure to submit a straight “not guilty” verdict form to the jury violated the defendant’s sixth and fourteenth amendment rights to have a jury determine guilt beyond a reasonable doubt. I believe that such a violation is clear on the record and in light of the great body of fundamental law incorporated in numerous precedents. Hence, I respectfully dissent.
I
As I have suggested, it is basic to our adversary system of justice that a criminal defendant has the right to have a jury determine guilt beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 520-*118823, 99 S.Ct. 2450, 2457-2458, 61 L.Ed.2d 39 (1979); Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 29 L.Ed.2d 491 (1968). It is similarly axiomatic that the Fourteenth Amendment requires the state to prove, again beyond a reasonable doubt, each element of the criminal offense charged. In re Winship, 397 U.S. 358, 361— 64, 90 S.Ct. 1068, 1071-1072, 25 L.Ed.2d 368 (1970).1 As the Seventh Circuit has stated,
[t]his right, emanating from the criminal defendant’s constitutional right to trial by jury, is neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him. This right is personal to the defendant, and, like his right to a jury trial, is one which he alone may waive; furthermore, in a situation wherein an understanding^ tendered waiver is not forthcoming from the defendant, under no circumstances may the trial court usurp this right by ruling as a matter of law on an essential element of the crime charged.
United States v. England, 347 F.2d 425, 430 (7th Cir. 1965) (footnotes omitted) (emphasis supplied).
In the case before us, Ross pleaded not guilty to the charge of murder, thus placing in issue all essential elements of the offense, and putting the state to its burden of proving, beyond a reasonable doubt, Ross’ guilt as to each element.2 Contrary to the majority’s apparent suggestion, this burden remained with the state regardless of what defenses Ross raised, regardless of which particular elements were expressly controverted by Ross, indeed regardless of whether Ross chose to put on any defense at all. United Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 410, 67 S.Ct. 775, 783, 91 L.Ed. 973 (1947).3 As this court held in United States v. England, 347 F.2d 425, 431 (7th Cir. 1965):
Once the defendant has entered a plea of not guilty, everything material to a finding of his guilt is in controversy. Thus, under our system of jurisprudence, it is technically possible for a criminal defendant to enter a plea of not guilty, introduce little or no evidence in his own defense, and rely exclusively on his presumption of innocence and the possible inability of the prosecution to prove his guilt beyond a reasonable doubt. Thereupon, guilt is determined by the jury, not the court. United Brotherhood of Carpenters and Joiners of America v. United States, 330 U.S. 395, 410 [67 S.Ct. 775, 783, 91 L.Ed. 973] (1946).
The fallacy of the majority’s analysis can perhaps be best demonstrated by considering the situation of a criminal defendant who introduces no evidence and raises no defense at all, but simply elects to stand silent throughout his trial. Surely, this defendant could be characterized as “never contesting that he committed the acts in *1189question. ’ ante at 1184. Yet under our constitutional system, even this defendant is entitled to have the state prove, beyond a reasonable doubt, each element of the crime charged, and to have a plain “not guilty” verdict submitted to the jury. In re Winship, supra; see United States v. Bosch, 505 F.2d 78 (5th Cir. 1974).4 Similarly, even this defendant would be entitled to habeas corpus relief if the trial judge, after listening to all the state’s evidence, directed a verdict against the defendant or, what in my view amounts to the same thing, refused to submit a straight “not guilty” form to the jury. See Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968);5 Commonwealth v. Edwards, 394 Pa. 335, 147 A.2d 313 (1959).6 And I fail to see why these principles should be deemed inapplicable merely because an insanity defense has been raised.
Of course, as with most other constitutional protections, a defendant may waive his right to have a jury determine guilt beyond a reasonable doubt. Such a waiver, however, cannot be presumed from a silent record, but must consist of “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The mere failure by counsel to object to an unfavorable court order or ruling does not meet this high standard, particularly since “ ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Johnson, supra, 304 U.S. at 464, 58 S.Ct. at 1023 (citation omitted). See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). Moreover, it has long been the law of this circuit that counsel may not stipulate to facts establishing the guilt of the accused without the defendant’s consent. See Achtien v. Dowd, 117 F.2d 989, 993-94 (7th Cir. 1941) (“Accused’s counsel had no authority to change [habeas petitioner’s] plea nor to stipulate facts without his consent. To hold otherwise would constitute a denial of several rights guaranteed the accused by the Bill of Rights.”)
Here, there is nothing in the record from which it could reasonably be inferred that Ross knew of or consented to the supposed stipulation that he committed the criminal *1190acts in question.7 Nor, as the majority concedes, did the trial judge address Ross personally in order to determine whether the alleged concession was made voluntarily and with an understanding of its consequences. See United States v. Brown, 428 F.2d 1100, 1103-04 (D.C. Cir. 1970). In light of these facts, I find it impossible to conclude that Ross knowingly and intelligently waived his right to have a jury determine, beyond a reasonable doubt, that he committed the criminal acts of which he was accused.
II
Although I believe the foregoing analysis, in contrast to the majority’s focus on Ross’ insanity defense, constitutes the proper method of resolving this case and clearly dictates reversal of the district court’s decision, I also have grave doubts about the “evidence” on which the majority relies to support its conclusion that Ross did not contest his commission of the crime. First, as the majority notes, Ross pleaded not guilty, thereby raising all possible questions of fact, see United States v. England, 347 F.2d 425, 431 (7th Cir. 1965). Whether or not this plea is “dispositive” of the issue before this court, it certainly does not support the conclusion that Ross stipulated to his commission of the crime. Second, the majority relies on the indication by defense counsel, in opening argument, that Ross was raising a defense of insanity, and on the fact that all the witnesses called by the defense directed their testimony to Ross’ mental capacity. It is true that the main thrust of the defense’s case was to show that Ross was mentally incompetent and, thus, could not be held legally responsible for the homicide. But this strategy did not preclude the defense from alternatively arguing — as it did — that, in fact, Ross did not commit the crime. See People v. Ford, 39 Ill.2d 318, 321, 235 N.E.2d 576, 578 (1968) (defendant may raise insanity defense and still contest commission of the crime). While the presentation of this alternative theory was not as robust as petitioner’s insanity defense, there is ample evidence that the theory was indeed urged and, unlike the majority, I see no reason to disregard this evidence.
In this regard, I find particularly significant the closing argument of defense counsel, which plainly indicates that Ross did not concede commission of the murder but, in fact, challenged several aspects of the state’s evidence.8 Defense counsel argued that there was no eyewitness evidence that Ross had been at the scene of the crime,9 that there was no testimony showing that he had washed blood stains out of the damp clothes recovered at the time of the arrest,10 that there was insufficient time for such laundering to have taken place,11 and that, in fact, the only evidence of Ross’ guilt was “really just a confession” which the jury did not have to believe.12 If Ross had conceded commission of the acts charged, there would have been no reason for defense counsel to make these arguments, which plainly chal*1191lenged the sufficiency of the state’s evidence of Ross’ guilt.13
Third, the majority points to Ross’ confession, which was introduced into evidence without objection from the defense. However, the mere introduction of an extrajudicial confession, particularly one whose authenticity and reliability are challenged, is in no way comparable to a judicial admission of guilt; if it were otherwise, there would be no need to conduct a trial for any defendant who had confessed before trial to commission of the crime in question. And I fail to see the constitutional relevance of the majority’s characterization of the confession as “no mere admission of guilt; [but] a gruesome account of the precise manner in which the murder was accomplished,” ante at 1185.
Fourth, the majority notes that Ross moved for a directed verdict at the close of the state’s evidence. Although the majority claims that this action “was completely consistent” with Ross’ exclusive reliance on an insanity defense, ante at 1185, it is difficult for me to view the motion as anything other than a challenge to the state’s evidence of Ross’ involvement in the crime, since up to that point in the trial there had been no significant evidence introduced tending to establish that Ross was mentally ill.
Finally, the majority discusses the jury instruction conference, held prior to closing argument in the chambers of the state trial judge. The relevant portion of this conference is quoted at page 1182 of the majority opinion. As the majority concedes, the transcript of the conference demonstrates that defense counsel initially and quite clearly requested a straight “not guilty” form. In my view, such a request strongly indicates that neither the defendant nor his counsel conceded commission of the crime. This inference is particularly strong where, as here, the request for a “not guilty” form comes on the heels of the trial judge’s strong indication that he is not inclined to submit such a form. And the majority’s suggestion, ante at 1185, that had Ross’ counsel been intent on arguing that his client did not commit the alleged acts, he would have, at this point, “at least attempted to make some statement for the record” seems to me to blink the realities of trial practice. But regardless of whether a more vigorous (and perhaps more foolhardy) advocate would have persisted in his disagreement with the trial judge, I am convinced that the colloquy as a whole cannot be interpreted as a waiver of Ross’ right to have the jury decide whether he committed the criminal acts of which he was accused.
Ill
Understandably reluctant to rest its decision on the ground that the state trial court did not err in refusing to submit a “not guilty” form to the jury because the defendant (or his counsel) somehow stipulated to commission of the alleged criminal acts, the majority ultimately concludes that Ross’ petition must be denied because “any error committed by the state judge was harmless.” Ante at 1186. In reaching this conclusion, the majority relies heavily on Krzeminski v. Perini, 614 F.2d 121 (6th Cir.), cert. denied, 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980) in which the Sixth Circuit characterized as “a patent constitutional violation,” a trial judge’s instruction to the jury that a straight “not guilty” verdict could not be returned because of the defendant’s in-court admission that he had killed the deceased, but held that an independent examination of the record demonstrated that the error was harmless beyond a reasonable doubt. The majority concedes, however, that “at least in one sense,” Krzeminski is not analogous to the instant case, *1192ante at 1186, since Krzeminski, like United States v. Harper, 460 F.2d 705 (5th Cir. 1972), involved an express stipulation (or judicial admission) that the defendant had committed the acts charged. Nevertheless, the majority goes on to reason that, in another sense, the case before us presents stronger reasons than did Krzeminski for applying the harmless error doctrine because “[njothing on the record before this court suggests that the judge in Ross’ case gave an express instruction that precluded a verdict of not guilty.” Ante at 1186. It is undisputed, however, that the state trial judge here instructed the jury as follows:
You will be provided with three (3) forms of verdict. When you have unanimously agreed upon your verdict you will select the form which reflects your verdict and sign it as I have stated.14
In the face of this explicit instruction, I simply cannot accept the majority’s conclusion that a reasonable jury would necessarily have concluded that, unless they determined that Ross had performed the alleged acts, he could not be found “guilty” regardless of what verdict forms were presented. Indeed, the Ninth Circuit, in Braley v. Gladden, 403 F.2d 858 (9th Cir. 1968), rejected just such an argument under circumstances quite similar to those of the instant case:
A jury is required to presume that an accused is innocent until he is proven guilty, and a court presumes that the jury applies only the law of which it is informed by the judge. Critical deficiencies cannot be supplied by inference or assumption as to the interpretation applied subjectively by twelve jurors, individually and collectively. While it may not be unreasonable to assume that the jury inferred from the instructions that it might be empowered to write its own form of a verdict of not guilty, it is equally reasonable to assume that the jury inferred that the judge intended that only one verdict was possible, a verdict of guilty upon the one and only form which he supplied.
403 F.2d at 860 (emphasis supplied).
Well-established precedent also persuades me that the majority’s reliance on the harmless error doctrine in this case is fundamentally misplaced. As the Supreme Court stated in Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1966) “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” The Supreme Court has strongly intimated that the right to have a jury determine guilt beyond a reasonable doubt, as to each element of the crime charged falls within this category. See United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977) (“a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict . . . regardless of how overwhelming the evidence may point in that direction.”); Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 396, 408, 67 S.Ct. 775, 783, 91 L.Ed. 973 (1947) (trial judge “may not direct a verdict of guilty no matter how conclusive the evidence”).15 Similarly, this court has held that
[n]o fact, not even an undisputed fact, may be determined by the Judge. The plea of not guilty puts all in issue, even the most patent truths. In our federal system, the Trial Court may never instruct a verdict either in whole or in part.
United States v. England, 347 F.2d 425, 431 (7th Cir. 1965), quoting Roe v. United States, 287 F.2d 435, 440 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 28 (1961).
In light of these precedents, the majority’s apparent belief that only an irrational *1193jury could have acquitted the defendant in this case outright, seems to me beside the point. See Jackson v. Virginia, 443 U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61 L.Ed.2d 560 (1979) (“the factfinder in a criminal case has traditionally been permitted to enter an unassailable but unreasonable verdict of ‘not guilty.’ This is the logical corollary of the rule that there can be no appeal from a judgment of acquittal, even if the evidence of guilt is overwhelming.”). Moreover, to base a finding of harmless error (as the majority alternatively appears to) on the possibility that a jury may disregard a trial judge’s explicit instructions and return a verdict not included among the options presented to it16, seems to me to expand the harmless error doctrine beyond all meaningful and justifiable limits. Indeed, in this regard, the words of Justice Frankfurter, reversing a conviction because of an improper jury charge and rejecting a similar “harmless error” argument in Bollenbach v. United States, 326 U.S. 607, 615, 66 S.Ct. 402, 406, 90 L.Ed. 350 (1946), seem particularly apt:
From presuming too often all errors to be “prejudicial,” the judicial pendulum need not swing to presuming all errors to be “harmless” if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however, justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however, cumbersome that process may be.
I therefore respectfully dissent.
. The Supreme Court in Winship stated:
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
397 U.S. at 364, 90 S.Ct. at 1073.
. As the Sixth Circuit recently noted:
A plea of “not guilty” has at least two dimensions recognizable by this court. First, in pleading “not guilty” a defendant reserves in toto those constitutional rights fundamental to a fair trial, included in this category of constitutional rights is the accused’s right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)]. Second, in pleading “not guilty,” a defendant exercises his right to make a statement in open court that he intends to hold the government to strict proof beyond a reasonable doubt as to the offense charged. Byrd v. United States, 342 F.2d 939 (D.C. Cir. 1965).
Wiley v. Sowders, 647 F.2d 642, 650 (6th Cir. 1981).
. As the Supreme Court has recently reminded us,
the constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. . . . Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted as a burglar.
Jackson v. Virginia, 443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979).
. United States v. Bosch involved a prosecution for conspiracy to distribute marijuana, in which both the prosecutor and the defense counsel acknowledged during a jury instruction conference that the defendant had admitted (by way of a confession) the offense charged in the indictment. Moreover, both counsel agreed with the court that the only issue left to be determined by the jury was whether the government had promised the defendant immunity from prosecution. The Fifth Circuit reversed the conviction, holding that the trial court’s failure to instruct the jury as to all elements of the crime and its submission to the jury of only a single, unresolved, issue constituted “plain error” under'Fed. R. Civ. P. 52(b) despite the fact that “defense counsel [had] participated and acquiesced in each of the challenged actions.” 505 F.2d at 81.
. In Braley, the defendant did not deny that he committed the homicide charged, but instead insisted that at the time he was highly intoxicated or, alternatively, that he was legally insane. The Ninth Circuit, granting petitioner’s request for a writ of habeas corpus, wrote:
[T]he oversight in not furnishing the not guilty verdict form along with the opposite form constituted, in effect, a severely adverse comment by the trial judge, an impermissibly grave insinuation of judicial attitude toward the ultimate issue of guilt or innocence. Accordingly, we hold that the influence exerted by the trial judge, although unintended and probably resulting from a clerk’s oversight, was so significantly irregular as to require a new trial.
403 F.2d at 860.
. In Edwards, notwithstanding that the defendant admitted a slaying, the Pennsylvania Supreme Court held that the trial court’s failure to include a “not guilty” verdict form with the other five forms given to the jury deprived the accused of a fair trial. In rejecting the prosecution’s argument that the defendant could not have been prejudiced by the judge’s action due to the extreme unlikelihood of the jury acquitting an admitted slayer, the court wrote:
[I]t still must be left to the jury to decide whether an admitted slayer had or did not have justification or excuse for what he did. ... It is the trial and the trial alone which decides whether a defendant is assuredly guilty. . . . [N]o matter with what certainty the Judge views the culpability of the accused at the bar, the defendant is still entitled to all of the safeguards of a fair trial as announced in the Constitution, and the law of the land.
147 A.2d at 314-15.
. Compare, e.g., United States v. Strother, 578 F.2d 397, 403 (D.C. Cir. 1978) (oral admission by defendant); United States v. Terrack, 515 F.2d 558, 560 (9th Cir. 1975) (signed stipulation); United States v. Harper, 460 F.2d 705, 707 (5th Cir. 1972) (stipulation by defense counsel in open court). See also Wiley v. Sowders, 647 F.2d 642, 650 n. 8 (6th Cir. 1981) (defendant’s consent to attorneys’ confession of guilt “cannot be presumed from a silent trial record.”).
. Counsel’s argument that Ross did not commit the crime might plausibly have been even more forcefully presented had the judge not already ruled that he would withhold from the jury the straight “not guilty” form.
. Abstract of Record, at p. 222.
. Id. at pp. 225-26.
. Id. at p. 226, see also id. at pp. 227-29.
. Id. at p. 241. In addition, the following excerpts from the record demonstrate that at several points counsel urged that the jury need not credit evidence tending to establish the petitioner’s guilt: “if you . . . believe the confession . . .,” id. at 226; “if you believe this evidence which is really just a confession ...,” id. at p. 241; “if you believe . . . that he stabbed a lady that was like a mother to him for no reason under the sun . . .,” id.; “if you believe that he beat her . . .,” id. (Emphasis added.)
. Even the prosecutor recognized, during his summation, that the defense had not conceded Ross’ commission of the crime:
[Defense counsel] at the end of the case talks in a debating manner out of both sides of his mouth. At one point in the very beginning, he said the defendant did it but he was insane. When he argued to you before lunch, he did something different. He said the defendant didn’t even do it.
Abstract of Record, p. 249.
. Abstract of Record, p. 15 (emphasis supplied).
. See also id., at 410, 67 S.Ct. at 783 (suggesting that neither the absence of a reasonable-doubt instruction nor the failure to instruct the jury as to an essential element of the crime can ever be considered harmless error); United States v. Hayward, 420 F.2d 142, 145 (D.C. Cir. 1969) (“When the error which is challenged on appeal goes to a basic constitutional right, such as the right to trial by jury in issue here, the error will rarely be considered harmless.”).
. A rationale which is inconsistent with the majority’s “jury nullification” argument.