(dissenting).
The only real trial accorded to Cooper occurred between the time of his arrest without a warrant on November 22, 1954 and the time of his confession on November 23. From the moment of his arrest Cooper was the prime suspect, the real defendant. No one told him that he had a right to remain silent, or that any statement he made could be used against him. (R. 178, 179.) His oral confession was made to Captain Wilkes of the Prich-ard Police Department, who testified:
“I came in that afternoon and later on — I couldn’t say exactly what time it was, but I was talking to him and I had run down- the clues to the case and confronted him with them • there in his cell. He wasn’t brought out. That is when he told me that he had killed him. He said he deserved to die and, he said, ‘you ought to give me a medal because he would have killed me up north and they would have give (sic) me a medal’.” (R. 101.)
Cooper’s fate having been sealed, he was permitted to call his attorney. It was then too late for the defense to be presented which Cooper futilely attempted to offer pro se in his state coram nobis hearing,1 and reiterated with counsel in his federal habeas corpus hearing (R. pp. 176, 177). Cooper testified that the attorney he called had represented him “in the past cases” (R. 178), “he was supposed to have been a friend of mine and he never was paid to represent me.” (R. 104, see also R. 190.) That testimony was not contradicted. Nonetheless, the attorney did the best he could for Cooper. Captain Wilkes testified:
“Q. Was a written confession taken down?
“A.8 No, sir; he told me — when I asked him did he want to make a written statement, he said his attor*87ney had advised him not to make any statement, and I said, ‘Well, you have already made an oral statement.’ He said, ‘But he told me not to write anything or tell you all anything’; I says, ‘All right.’ ” (R. 208.)
Unfortunately that advice came after Cooper had confessed. It was natural that Cooper’s lawyer should then conclude that the best he could do for his client was to bargain to save his life. The prosecuting attorney testified: “I discussed settlement with Judge Taylor, naturally, as I would do with a defense lawyer, and we agreed on I would recommend a life sentence, and he entered his plea * * *(R. 259.) The entire proceedings in open court prior to the court’s instructions to the jury and the only evidence of the care or lack of care exercised by the Judge in determining that Cooper’s plea of guilty was made voluntarily are comprised in a few lines of the record (R. p. 139):
“Mr. Taylor: Just give your statement.
“Solicitor: You pleading guilty?
“Mr. Cooper: Just about. I’m pleading guilty for a life sentence, I’m withdrawing my plea of not guilty and pleading guilty for a life sentence.
“Court: He’s pleading guilty Mr. Taylor ?
“Mr. Taylor: Yes sir, the clerk’s entering the plea right now.
“Court: Gentlemen this is an indictment by the January term * * * »
Under the teaching of Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and their progeny, it seems clear to me that Cooper’s oral confession was obtained in violation of his constitutional rights. With deference, I submit that it is wholly unrealistic to assert that Cooper’s confession is not connected with his subsequent plea of guilty. If the confession was admissible, the plea of guilty was almost inevitable.
No one advised Cooper that his confession was invalid or inadmissible. That is no reflection on his attorney, for Massiah and Escobedo had not been decided at that time. It seems to me, however, that since it is now established that Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, is retrospective, Massiah and Escobedo must also be held to be retrospective. I will not collect the lower court decisions since that question will probably be settled by the Supreme Court very shortly.
The plea of guilty was induced not only by the illegal confession but by the bargain to save Cooper’s life. The plea of guilty having been made upon an understanding as to the punishment to be recommended, it seems to me absolutely essential that the trial court, before accepting the plea, should make certain that the plea was in fact made voluntarily.2 When used in that connection, “voluntarily” means more than “consciously” or “intentionally.” When the circumstances are such that the choice of a false plea is a natural one, the court should determine that the plea is so voluntarily made as to furnish reliable and trustworthy testimony that the accused is in fact guilty. The question is whether the dominant motivating cause of the plea is to confess actual guilt or to reap the reward of the bargain.3
In the present case the brief proceeding in open court leaves no doubt as to the proper answer to that question: “Solicitor: You pleading guilty?
“Mr. Cooper: Just about. I’m pleading guilty for a life sentence, I’m withdrawing my plea of not guilty *88and pleading guilty for a life sentence.” (R. 139.)
I would agree that a confession illegally obtained does not invalidate a plea of guilty not induced by that confession but voluntarily made. It may also be true that a plea of guilty is valid, notwithstanding a previous agreement as to the punishment to be imposed. To my mind, the validity of a judgment of conviction based upon any such plea of guilty depends upon the adequacy of the record to show a real determination by the court that the defendant intended to plead guilty because he actually was guilty and not because he had previously made an illegal confession or hoped to reap the reward of the bargain as to punishment. I think the present record is wholly inadequate to sustain such a determination. If the law required any less, there would always be the possibility or even probability that an innocent defendant might plead guilty because of a confession illegally obtained or because of his fear of the death penalty. I therefore respectfully dissent.
. “THE COURT: Is there anything — I mean, what is it that you want to prove by this witness? What point did you want to make by it?
“MR. COOPER: Well, I appreciate it, Tour Honor. Out here on the Eight Mile Creek where the law says this boy got killed, we had all been going out there shooting dope for a long period of time, a bunch of dope fiends, throwing my bottles out there, and I’m trying to prove to this Court that I have never-had the opportunity before — the law said they found a bunch of my bottles out there, see. I’m trying to prove to this Court that the man got killed out there in my trap, see, and there ain’t nobody seen me kill Mm.” (R. 78.)
. See Shelton v. United States, 5 Cir. 1957, 242 F.2d 101, 113; on rehearing en banc, 1957, 246 F.2d 571, 578; reversed on the Solicitor General’s confession of error, 1958, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579.
. See Shelton v. United States, supra n. 2, 246 F.2d at 579, 580; for a collection of literature on the subject of "whether justice is properly a subject of bargaining, see 8 Moore Fed. Practice & Procedure, 2nd ed. ¶11.05, pp. 11-23, 11-30.