(concurring):
Joining in Chief Judge Bazelon’s opinion, I add this concurring comment only because the dissenting opinion — erroneously, in my view — pictures this decision as a jurisprudential sport that “licenses every illiterate moron to violate the law with impunity.” In actuality this decision merely recognizes and implements the fundamental and firmly established rule that “if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.” See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 425 (1968).
By proper post-conviction procedure in the trial court, appellant Masthers put in issue the question whether his guilty plea had been “voluntary and knowing.” And on that issue he asked for an evidentiary hearing.
The district court denied an evidentiary hearing and found the plea valid on the basis of the original showing that had been made in open court before acceptance of the plea. Thus the issue here is simply whether the district court should have permitted the appellant to establish, if he could, in this post-conviction proceeding that his plea was not, as it had seemed at arraignment, voluntary and knowing.
As Chief Judge Bazelon points out, data before us on this appeal, but. not before the district court at arraignment, strongly indicates that Masthers’ level of intelligence is so low and his mental retardation so great that all that was said and done on the occasion of his pleading did not irrebuttably establish comprehension of the relevant circumstances and a meaningful election to plead guilty. The dissenting opinion seems to reason that, since it is not contended that Masthers was legally “insane”, his capacity to understand an ordinary explanation and then make a voluntary and knowing election must be measured by the standard of normal intelligence. This is our point of disagreement.
We make special effort and provisions to the end that the deaf litigant or the litigant whose comprehension of the English language is poor shall understand what is transpiring in court and act knowingly. It seems neither fair nor humane to refuse to make an analogous appropriate special effort when it appears that an accused person’s comprehension is substantially impaired because of mental retardation.
In these circumstances it is our proper and constant concern for fair procedure, not any doctrinal aberration, that dictates an evidentiary hearing to determine, in the light of all that is now known about Masthers’ mentality, whether his plea was voluntary and knowing. If it was, that would end the matter. On the other hand, if he should be permitted to withdraw his plea, it should not be too difficult to find someone skilled in working and communicating with the mentally retarded who could and would communicate effectively with him, so that his participation in any further proceedings would be knowing and meaningful.