Petition — Brewer v. Williams

———

° ie Court 3.

2.

APR 5 1975

RTT. oem

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. €4-1263

LOU V. BREWER, Warden of the Iowa State

Penitentiary at Fort Madison, Iowa,

Petitioner,

VS.

ROBERT ANTHONY WILLIAMS, a/k/a

ANTHONY ERTHEL WILLIAMS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RICHARD C. TURNER

Attorney General of Iowa

RICHARD N. WINDERS

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Petitioner

E. L. Menvennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

ETT eS Fae CTY Reta MO NT

ES -- SEIN ey ae ae ee ne RE

I alread eereiainil ine

Constitutional Provisions and Statutes ......0....0........06.

RO I <n sic cessensedemieiidicibamsdiiadasanntinainiaiiie

Reasons for Granting the Writ 2......00...........ccccccceeeeeeeeeees

I. This Case Presents Serious Questions Concerning

II.

Federal Habeas Corpus Review of a State Court

Conviction in That the Decision Conflicts with

Townsend v. Sain, 372 U.S. 293 (1963) and Did

Not Comply with the Provisions of 28 U.S.C.

ERSTE rae Pear NRX eee Rea neo ee ONE

The Decision of the Circuit Court Constitutes an

Unwarranted Extension of Waiver of the Right

to Counsel and Conflicts in Principle with a

Prior Decision of the Eighth Circuit and Deci-

I Ge I EDD Sernisicnctsseniconiccnshditesbensicimntianene

III. This Decision Is in Conflict with Other Circuits

in That It Disregarded Significant Facts Relevant

to the Determination of the Issue of Waiver ........

IV. The Harsh Application of Miranda v. Arizona,

384 U.S. 436 to This Case Demonstrates a Sig-

nificant Need to Adopt a More Flexible Standard

to Protect the Rights of Both the Individual and

Be BI A CIID inectsicsssscecnssescenecentennenicmmesnadennieiin

a

I

II

Appendix A—Opinion of the United States Court

of Appeals for the Eighth Circuit, Filed December

is: IEE csnsinsees sniickeadssoneiptintalateseuastin

Appendix B—Citation of the United States District

Court’s Opinion ............

Appendix C—Order of the United States Court of Ap-

peals for the Eighth Circuit denying the Petition

Be NINN TID TRIID cescesiccsssipnsssesivsncnstinieniineninieiaiiionn ... A23

Appendix D—Order of the United States Court of

Appeals for the Eighth Circuit staying the issuance

of the mandate for 60 days from and after February

= fs ae elieeseenadieiadicammapabaaaiadins Raw eNO A A24

Appendix E—Constitutional Provisions and Statutes A25

CASES

Brookhart v. Janis, 381 U.S. 1 (1966) .00.00000n.. 10

Coughlan v. United States, 391 F.2d 371 (9th Cir.

aan Da rasta tle NESE eo NPD OER TD TPR 11

Escobedo v. Illinois, 378 U.S. 478 (1964) 000000... 11

Holloway v. United States, 495 F.2d 835 (10th Cir.

RED cohacatsledecs teeny ae

Hughes v. Swenson, 452 F.2d 866 (8th ( Cir. i971) a 42

Johnson vy. Zerbst, 304 U.S. 458 (1938) .... eee Mae 10

Massiah v. United States, 377 U.S. 201 (1964) 10-11

Mathias v. United States, 374 F.2d 312 (D.C. Cir. 1967) 11

Miranda y. Arizona, 384 U.S. 436 (1966) 2,7, 11, 12, 13

Moore vy. Wolff. 495 F.2d 35 (8th Cir. 1974) oe 1]

Townsend vy. Sain, 372 U.S. 293 (1963) 2,7,8,9

United States v. Cobbs. 481 F.2d 196 (3rd Cir. 1973) ...11, 12

United States v. Durham, 475 F.2d 208 (7th Cir. 1973) 11

ul

United States ex rel. Falconer y. Pate, 319 F. Supp. 206

(N.D. Ill. E.D.), aff., 478 F.2d 1405 (7th Cir. 1973) 8

United States ex rel. McNair v. New Jersey, 492 F.2d

Fi tin REE Rn Oe A )

United States v. Wedra, 343 F. Sane. 1183 (S.D.N.Y.

rie acatacoads ne 1)

STATUTES

EE EI RE TERNS a sat an

28 U.S.C. §2254(d) ............... i Ea ad 2,7, 8,9

RESET SERINE ce Ro coo Hf Finda oA ee 14

CONSTITUTIONAL PROVISIONS

Fifth Amendment to United States Constitution ee 3,13

Sixth Amendment to United States Constitution ....3, 10,13

Fourteenth Amendment to United States Constitution... 3

MISCELLANEOUS

J. Skelly Wright and Abraham D. Sofaer, Federal

Habeas Corpus for State Prisoners: The Allocation

of Fact-Finding Responsibility, 75 Yale L. J. 895,

920-922 (May 1966) ............006 ieee 4

In the Supreme Court of the United States

OCTOBER TERM, 1974

LOU V. BREWER, Warden of the Iowa State

Penitentiary at Fort Madison, Iowa,

Petitioner,

vs.

ROBERT ANTHONY WILLIAMS, a/k/a

ANTHONY ERTHEL WILLIAMS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Petitioner, Lou V. Brewer, Warden of the Iowa

State Penitentiary at Fort Madison, Iowa, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Eighth

Circuit entered in this proceeding on December 31, 1974.

OPINION BELOW

The opinion of the Court of Appeals has not as yet been

published, and it appears at Appendix A. Appendix B cites

the opinion of the District Court.

JURISDICTION

On the 31st day of December, 1974, the Court of Ap-

peals for the Eighth Circuit filed its Opinion and Judg-

ment (see Appendix A). On the 30th day of January, 1975,

the Court of Appeals for the Eighth Circuit filed its Order

on Petition for Rehearing En Bane (see Appendix C).

Upon a motion by petitioner, a Stay of issuance of the

mandate was granted on February 6, 1975, provided that an

application by the State of Iowa is made to the United

States Supreme Court for a Writ of Certiorari (see Ap-

pendix D). The jurisdiction of this Court is invoked under

Title 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Did the Federal District Court exceed its author-

ity by disregarding the presumption of correctness given

state court written findings of fact pursuant to 28 U.S.C.

$2554(d) and by resolving disputed facts without con-

ducting an evidentiary hearing as required by Townsend

v. Sain, 372 U.S. 293 (1963)?

2. Can the retention of counsel preclude an accused

from waiving his personal constitutional right absent the

presence of that counsel?

3. Did the District Court err in disregarding relevant

record facts showing a waiver of ccenstitutional rights there-

by inappropriately holding that the state failed to meet

its burden of proof?

4. Should a more flexible standard be adopted to

replace the too restrictive requirements of Miranda v.

Arizona, 384 U.S. 436 (1966)?

CONSTITUTIONAL PROVISIONS AND STATUTES

Amendments V, VI and XIV of the Constitution of the

United States and Title 28 U.S.C. §2254(d) are set forth in

Appendix E.

STATEMENT OF THE CASE

Robert Anthony Williams, a/k/a Anthony Erthel Wil-

liams, herein referred to as “Williams” was convicted upon

jury trial in Polk County District Court of the crime of

first degree raurder and sentenced to life imprisonment in

the Iowa State Penitentiary. The Iowa Supreme Court

affirmed the conviction and denied rehearing. State v.

Williams, 182 N.W.2d 396 (1971).

After exhaustion of his state remedies, Williams filed

a petition for a writ of habeas corpus in the United States

District Court for the Southern District of lowa. The peti-

tion was sustained. Williams v. Brewer, 375 F. Supp. 170

(S.D. Ia. 1974).

The judgment of said United States District Court

was affirmed by the United States Court of Appeals for

the Eighth Circuit on December 31, 1974, on the opinion

of a panel of that Court with one Judge dissenting. A

Petition for Rehearing En Banc was denied by Order of

the Court entered January 30, 1975, Chief Judge Gibson

with Judges Stevenson and Webster voting to grant the

Petition. A Stay of issuance of the mandate was granted

for sixty (60) days on February 6, 1975, provided that the

State of Iowa made application to the United States Su-

preme Court for a Writ of Certiorari.

The Facts

It was about noon of the day before Christmas 1968,

and 14-year-old Mark Powers was competing in a wres-

tling match at the Des Moines YMCA. His proud mother

and sister, 10-year-old Pamela, came to watch and cheer

him on. As they were going in Pamela, a bright, slightly

built little blue-eyed blonde girl, asked her mother if she

could have some candy. The child’s mother at that time

refused but, as parents will, later relented and gave her

a quarter to buy a candy bar. Pamela scurried off and

returned with her purchase only to remember that just

before leaving home she had been cuddling her puppy.

Because of this Pamela asked her mother if she could go

wash her hands before eating the candy. Her mother said

yes and Pamela left, never to be seen alive again by those

who loved her.

Sometime after Pamela left, her father, Merlin Powers,

and 16-year-old sister Vickie came to join the audience.

Pamela’s mother asked her husband if he had seen Pamela

in the lobby as he came in. The father said no and with

growing alarm the anxious parents began to look for their

little girl enlisting the aid of YMCA personnel in their

frantic search, but to no avail.

Pamela’s small body, clad only in a shirt, was found

two days later frozen to a culvert on a lonely rural road

where Williams had thrown her. Part of her nose had

been eaten off by rodents or other small animals. A medi-

cal examination showed that little Pamela was dead before

being tossed into the culvert.

The examining physician who performed the autopsy

testified that 10-year-old Pamela’s young body had been

sexually ravaged. Seminal fluid was present in her vagina

and rectum. The physician stated that there were no

H)

signs of pressure having been applied to the external area

of Pamela’s neck and throat, but that the interior of the

young child’s mouth was torn and bruised, with seminal

fluid throughout. Death was due to strangulation, “like a

baby holding its breath till it gets blue.”

Shortly after Pamela disappeared, Williams, a YMCA

resident, was seen hurriedly carrying a large bundle from

the elevator through the lobby. The bundle was wrapped

in an old blanket, and Williams told a bystander that it was

a mannequin. Outside, Williams asked a 14-year-old boy

to open the door of his car. YMCA personnel assisting

Pamela’s parents in the search noticed Williams and the

“mannequin” and followed him to his car. When ap-

proached by these individuals, Williams shoved one of them

back, jumped into his car, locked the doors, and sped away.

At trial, the boy who opened the car door testified that

when Williams put the bundle into the back seat, he “saw

two white legs in it and they were skinny and white.”

On Christrnas Day Pamela’s father identified his young

daughter’s slacks and socks discarded along the interstate

east of Des Moines; further along the interstate Williams’

car was found in Davenport, Iowa. Early the next day,

Williams telephoned his attorney in Des Moines for advice.

He was counseled to turn himself in to the authorities and

shortly thereafter presented himself to Davenport Police,

who arrested him, booked him, and read him Miranda warn-

ings. Williams again telephoned his attorney in Des Moines.

In the presence of police officers, Attorney McKnight told

Williams not to make any statements until he returned to

Des Moines. The police officers immediately departed un-

der an alleged agreement not to question Williams until

they met with counsel on their return to Des Moines.

Williams was again advised of his Miranda rights by a state

court judge. After arriving in Davenport and before de-

6

parting for Des Moines, Williams was again informed of his

Miranda rights. While in Davenport, Williams conferred

with an Attorney Kelly on three occasions. There is dis-

puted testimony to the effect that Kelly advised the police

that Williams would make no statements until he reached

Attorney McKnight and that Attorney Kelly asked De-

tective Leaming that he be permitted to ride with Williams

to Des Moines.

Upon leaving Davenport, Williams initiated conversa-

tions with Leaming concerning the police investigation; if

the police had checked for fingerprints in his room, and

other general conversation. Someiime during the trip,

Williams made statements, interpreted by the federal court

in contravention of the state court finding of fact, that Wil-

liams invoked his constitutional rights.

While en route to Des Moines one of the officers com-

mented that the weather was beginning to turn bad and that

discovery of the body and a decent burial for the child

might be delayed by snow covering the body. After travel-

ing some distance further, Williams suddenly asked the

escorting officers whether the police had found Pamela’s

shoes and the blanket in which he had wrapped her, and

directed them first to a gas station and then to an interstate

rest-stop in order to check garbage barrels. As the auto-

mobile in which they were riding neared Des Moines,

Williams told the officers, “I’m going to show you where

the body is.” He then guided the officers to a lonely rural

road where the young girl’s body was found.

REASONS FOR GRANTING THE WRIT

“I. THIS CASE PRESENTS SERIOUS QUESTIONS

CONCERNING FEDERAL HABEAS CORPUS REVIEW

OF A STATE COURT CONVICTION IN THAT THE

7

DECISION CONFLICTS WITH TOWNSEND v. SAIN, 372

U.S. 293 (1963) AND DID NOT COMPLY WITH THE

PROVISIONS OF 28 U.S.C. §2254(d).

II. THE DECISION OF THE CIRCUIT COURT

CONSTITUTES AN UNWARRANTED EXTENSION OF

WAIVER OF THE RIGHT TO COUNSEL AND CON-

FLICTS IN PRINCIPLE WITH A PRIOR DECISION OF

THE EIGHTH CIRCUIT AND DECISIONS OF OTHER

CIRCUITS.

Ill. THIS DECISION IS IN CONFLICT WITH

OTHER CIRCUITS IN THAT IT DISREGARDED SIG-

NIFICANT FACTS RELEVANT TO THE DETERMINA-

TION OF THE ISSUE OF WAIVER.

IV. THE HARSH APPLICATION OF MIRANDA v.

ARIZONA, 384 U.S. 436 TO THIS CASE DEMONSTRATES

A SIGNIFICANT NEED TO ADOPT A MORE FLEXIBLE

STANDARD TO PROTECT THE RIGHTS OF BOTH THE

INDIVIDUAL AND SOCIETY AS A WHOLE.

The state trial court, in determining the issue of

waiver, found, on the undisputed state’s evidence, that

Williams did not request assistance of counsel during the

trip from Davenport to Des Monies. An opposite finding

of fact was made by the Federal District Court after ex-

amination of the state court record. Pursuant to 28 U.S.C.

$2254(d), a state court’s written determination of a factual

issue following a hearing is presumed correct in a federal

habeas court absent enumerated state proceeding defects.

As noted by Judge Webster in dissent, “to the extent that

findings of fact were indisputably made by the state trial

judge, those facts are to be taken as true unless they fall

within the stated exceptions of 28 U.S.C. §2254(d).” None

of the enumerated exceptions apply to this written finding

of fact.

8

The language in the bare record interpreted by the

federal court as an invocation by Williams of his right to

counsel is, as noted by Judge Webster, ambiguous on its

face. It is significant that the statement in question was

the product of a state’s witness, Detective Leaming. A

proper interpretation of the testimony rests entirely upon

the credibility and demeanor of the witness. While the

state trial judge questioned Detective Leaming’s candor,

he did not find in Leaming’s testimony that Williams in-

voked his right to counsel. Moreover, although Williams

testified at the suppression hearing, not an inkling of his

testimony indicates he invoked his rights. The findings of

the state court must be given great deference for he had

the witnesses before him and was in a far superior posi-

tion to compr<hend the true meaning of the testimony.

The Court of Appeals found that the issue of waiver

is a federal question. As such, the federal courts are obli-

gated to make their own independent determination. Peti-

tioner suggests that the resolution of the issue of waiver

necessarily turns upon the facts. Thus, Petitioner sub-

mits the presumption contained in 28 U.S.C. §2254(d) ap-

plies to the underlying facts in determining the federal

question of waiver. As stated in this Court’s decision of

Townsend vy. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d

770 (1963), the precursor of §2254(d): “It is the district

judge’s duty to apply the applicable federal law to the

state court fact findings independently.” [See United

States ex rel. Falconer v. Pate, 319 F. Supp. 206 (N.D. Il.

E.D.) for application of 28 U.S.C. $2254(d) to facts of

waiver of Miranda rights, affirmed, 478 F.2d 1405 (1973) ].

The District Court adopted’ Williams’ version of the

facts entirely. The court below concedes the discrepancies

between the testimony of Mr. Kelly and Detective Leaming

exist in the state record. These critical disputed facts

were not, as the Court of Appeals concedes, resolved by

the state court. This Court has held that where the

merits of a factual dispute were not resolved in a state

court, the federal habeas court is obligated to conduct an

evidentiary hearing. Townsend vy. Sain, supra. The state,

as well as the habeas applicant, is entitled to this hearing.

United Siates ex rel. McNair vy. New Jersey, 492 F.2d 1307

(3rd Cir. 1974). Moreover, as the Court of Appeals points

out, other ambiguities exist in the record which were relied

upon by the District Court to make its findings. It was

incumbent upon the District Court to conduct an eviden-

tiary hearing before resolving critical facts which turn

upon the credibility and demeanor of the narrators.

“Considerations of comity and proper respect for the

state courts counsel against precipitous action to in-

validate their judgement. If, when viewed against

the backdrop of all the facts, the state court decision

may be found to be correct, it should not be over-

turned because it is based on less than all the informa-

tion which can be made available to the district court.”

McNair, supra.

The lower court’s treatment of the facts raises serious

problems concerning the role of a federal court on review

of a state conviction. If federal courts are hereafter al-

lowed to resolve facts in similar fashion, there would be

little purpose in having an original adjudication of federal

rights in the state courts. J. Skelly Wright and Abraham

D. Sofaer, Federal Habeas Corpus for State Prisoners:

The Allocation of Fact-Finding Responsibility, 75 Yale L. J.

895, 920-922 (May 1966).

Disregard of the presumption of correctness of 28

U.S.C. $2254(d) and a failure to conduct an evidentiary

hearing in violation of this Court’s decision of Townsend

v. Sain constitutes error.

10

The decision below, in effect, places control of the

constitutional right to counsel in the hands of counsel

rather than the accused.

The Circuit Court enumerated certain facts in deter-

mining Williams did not effectively waive his right to

counsel. The court found the police made and broke an

agreement with defense attorney McKnight: Williams

would not be questioned before consultation with Mc-

Knight in Des Moines. As pointed out by Judge Webster

in dissent, the alleged “broken promise” of Captain Learm-

ing was at the root of the result in this case.

While the breaking of an agreement between police

and defense counsel is viewed as questionable police con-

duct, it cannot preclude Williams from effectively waiving

his rights. The Sixth Amendment right to counsel is in-

herently a personal right, a right only Williams could

waive. Counsel cannot make a contractual agreement to

limit his client’s prerogative to assert or waive a known

constitutional right. See Brookhart yv. Janis, 381 U.S. 1

(1966). The situation is analogous to a prosecutor and

defense counsel entering a plea of guilty agreement; cer-

tainly the defendant is not bound to it. To hold otherwise

would contravene the time-tested definition of waiver:

“an intentional relinqguishment or abandonment of a

known right or privilege.” Johnson v. Zerbst, 304 US.

458 (1938). The making and breaking of an agreement

between counsel and police is completely irrelevant to

whether Williams voluntarily waived his right to counsel.

The decision in this case has, in principle, established

a rule that an accused cannot effectively waive his right

to counsel for purposes of interrogation, absent presence

of counsel. The circuits which have dealt with this ques-

tion conflict in their result. Some in accord with the deci-

sion in this case concluded logical extensions of Massiah

11

v. United States, 377 U.S. 201 (1964) prohibited interro-

gation absent counsel’s presence. Accord United States v.

Durham, 475 F.2d 208 (7th Cir. 1973). Others in accord

with this decision interpreted Escobedo v. Illinois, 378 U.S.

478 (1964) and Miranda vy. Arizona, 384 U.S. 436 (1966)

to prohibit interrogation unless counsel was present. Ac-

cord Mathias v. United States, 374 F.2d 312 (D.C. Cir.

1967) and United States v. Wedra, 343 F. Supp. 1183

(S.D.N.Y. 1972). A different panel of the Eighth Circuit

in Moore v. Wolff, 495 F.2d 35 (8th Cir. 1974) rejected this

theory. Following the reasoning of United States v. Cobbs,

481 F.2d 196 (3rd Cir. 1973) and Coughlan v. United States,

391 F.2d 371 (9th Cir. 1968), that panel resisted any rigid

criteria and instead found the test to be whether the ac-

cused knowingly, intelligently, and voluntarily waived his

rights in the absence of counsel. While the lower court

acknowledged Moore v. Wolff, supra, this decision reflects

a contrary result.

Petitioner suggests that the extension of the test of

waiver represented by the decision in this case erodes the

personal nature of liberties guaranteed in the Constitution

by placing the choice of invoking or waiving a constitu-

tional right in the hands of counsel.

In finding that no facts existed to support a valid

waiver, the Circuit Court ignored clear record facts which

other courts have deemed material in a determination of

waiver. Curiously, in finding no waiver, the court lists

facts which are indicative of an effective waiver. The facts

that Williams asked for and obtained attorneys in both

Davenport and Des Moines and that the attorneys advised

him to make no statements show Williams had knowledge

of his rights.

The evidence is undisputed that Williams was given

three separate Miranda warnings and expressly stated he

12

understood their meaning. There is no suggestion the

warnings did not comport with Constitutional standards.

He sought the advice of counsel and was instructed to re-

main silent. Absent coercion, such evidence reveals any

waiver thereafter was intelligently and knowingly made.

Hughes v. Swenson, 452 F.2d 866 (8th Cir. 1971).

Williams, himself, initiated conversations with Detec-

tive Leaming. He probed Leaming concerning the police

investigations, asking Leaming if the police had checked

for fingerprints in his room and if they questioned any of

his friends. He asked questions about police procedure

and a multitude of other subjects. When an accused, after

being advised of his rights, actively seeks to speak with

officials about matters under criminal investigation, such

action is a strong indication of waiver. Holloway v. United

States, 495 F.2d 835 (10th Cir. 1974); United States v.

Cobbs, supra.

The record clearly shows that the incriminating state-

ments made by Williams were spontaneous, and not the

result of police questions. Leaming’s statement about the

weather and locating the body occurred approximately two

hours before Williams made any incriminating statements.

There is no evidence to suggest, that within that time

interim, Williams was subjected to any interrogation,

subtle or otherwise. As they neared the locations where

Williams disposed of the incriminating evidence, he sud-

denly inquired if they had found the shoes, and moments

later, the blanket. After leading the officers in a fruitless

search for these items, they continued toward Des Moines.

As they approached the Mitchellville exit, Williams stated,

“I’m going to show you where the body is.” He then di-

rected the officers to the body. Volunteered statements

are clearly admissible. Miranda, supra.

13

These relevant facts ignored by the lower court, es-

tablish that the state met its heavy burden in showing a

knowing, intelligent, and voluntary waiver.

Failure to comply with the requirements of Miranda

v. Arizona, 384 U.S. 436 (1966), should no longer be

grounds for the exclusion of oral admissions or other evi-

dence which are the results of conversations with a sus-

pect in custody. The holding of the Eighth Circuit in this

case substantially formalizes Miranda requirements and

is a major step in the elevation of form over substance.

The decision of Miranda v. Arizona, supra, must not be al-

lowed to foster the development of legal rituals, compara-

ble to common law forms of action pleading, but demands

re-evaluation of rights protection in the light of the

changed circumstances of the past nine years.

The requirements of Miranda v. Arizona, supra, ful-

filled a possible need to reform criminal justice procedures

and re-orient thinking about the Fifth and Sixth Amend-

ments. Most importantly, it called to the attention of

those who enforce the law the Fifth and Sixth Amend-

ments rights. However, the necessity for drastic measures

can never be more than temporary and harsh rules must

give way to re-evaluation. Today’s better trained criminal

justice personnel are demonstrating maturity and responsi-

bility and the system as a whole can be trusted not to

abuse a more flexible standard which has greater potential

for achieving the ends of criminal justice while continuing

to protect individual liberties, by applying the Fifth and

Sixth Amendments rights with a view to the totality of the

circumstances.

Petitioner urges this Court to withdraw the technical

requirements of Miranda y. Arizona, supra, in favor of the

more flexible procedures adopted by Congress in the

14

Omnibus Crime Control and Safe Streets Act, 18 U.S.C.

§3501 (1968).

CONCLUSION

For these reasons, a Writ of Certiorari shoud issue to

review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

RICHARD C, TURNER

Attorney General of Iowa

RICHARD N. WINDERS

Assistant Attorney General

CERTIFICATE OF SERVICE

I, Richard N. Winders, Assistant Attorney General

for the State of Iowa, hereby certify that on this 4th

day of April, 1975, three (3) copies of the Petition for a

Writ of Certiorari were mailed, correct postage prepaid, to:

Mr. Robert Bartels

College of Law

University of Iowa

Iowa City, Iowa 52242

Counsel for Respondent

I further certify that all parties required to be served

have been served.

RICHARD N. WINDERS

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorney for Petitioner

Al

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 74-1300

Robert Anthony Williams, a/k/a Anthony Erthel Williams,

Appellee,

Vv.

Lou V. Brewer, Warden,

Appellant.

Appeal from the United States District Court for the

Southern District of Iowa.

Submitted: September 12, 1974.

Filed: December 31, 1974.

Before VOGEL, Senior Circuit Judge, ROSS and WEB-

STER, Circuit Judges.

VOGEL, Circuit Judge.

Appellee, Robert Anthony Williams, was found guilty

by jury verdict of murder and sentenced to life imprison-

ment in the Iowa State Penitentiary. In a five to four

decision, the Supreme Court of Iowa affirmed the con-

viction and denied rehearing. See State v. Williams, 182

N.W.2d 396 (1971).

A2

After exhaustion of his state remedies, appellee filed

a petition for a writ of habeas corpus in the United States

District Court’ on the ground that certain statements made

by appellee, and other evidence and testimony obtained as

the result of those statements, were improperly admitted

into evidence in contravention of the Fifth, Sixth and

Fourteenth Amendments to the Constitution of the United

States.

In a carefully detailed and well supported opinion

published as Williams v. Brewer, 375 F. Supp. 170 (1974),

the District Court sustained the petition for a writ of

habeas corpus. Timely appeal was made to this court.

We affirm.

Evidentiary Facts.

The attorneys for the parties agreed to submit the

case to the District Court on the record of facts and pro-

ceedings in the state trial court.

The District Court, in an exercise of its discretion,

agreed to review appellee’s petition based upon the state

court records. Dempsey v. Wainwright, 471 F.2d 604, 606

(Sth Cir. 1973), cert. denied, 411 U.S. 968, 93 S.Ct. 2158,

36 L.Ed.2d 690 (1973). The District Court accordingly

made its findings of fact, upon which it based its order,

without conducting further evidentiary hearings.

The following facts are unchallenged by either party:

On December 24, 1968, the Powers family attended a

wrestling tournament in the YMCA building in Des

Moines, Iowa. When Pamela Powers, aged 10, failed to

return from a trip to the restroom, a search was started.

1. The Honorable William C. Hanson, Chief Judge, United

States District Court for the Southern District of Iowa.

A3

The police were called after she could not be located in

the building.

Appellee Williams, who had a room on the seventh

floor of the YMCA building, was seen in the lobby coming

from the elevator carrying some clothing and a large

bundle wrapped in a blanket. He spoke to several persons

on the way out, explaining to one that he was carrying a

mannequin. He requested the aid of a 14-year-old boy to

open first the street door and then the door of his Buick

automobile parked at the curb. This boy testified that

when the appellee placed the bundle in the passenger’s

seat he “saw two legs in it and they were skinny and

white.” Efforts by YMCA personnel to view the object

were thwarted by the appellee as he closed and locked the

car doors and drove away.

On the following day appellee’s car was found by

police in Davenport, Iowa, approximately 160 miles east

of Des Moines. At that time a warrant on a charge of

child stealing was issued for appellee’s arrest.

Sometime in the morning of December 26, 1968, ap-

pellee called from Rock Island, Illinois, to Attorney Henry

T. McKnight of Des Moines, lowa. Mr. McKnight advised

the appellee to surrender himself to the Davenport, Iowa,

police. Appellee did so.

After the first long distance telephone call from ap-

pellee, Mr. McKnight proceeded to the Des Moines police

station where he received another long distance telephone

call from the appellee, this time from Davenport where he

was in police custody. Mr. McKnight, in the presence and

hearing of Chief of Police Wendell Nichols and Detective

Cleatus M. Leaming, told the appellee that he would be

transported from Davenport to Des Moines by Des Moines

A4

policemen, that he would not be mistreated or grilled,

that they would talk the matter over in Des Moines, and

that appellee should make no statement until he reached

Des Moines.

Thereafter, it was agreed that Detective Leaming and

Detective Nelson would go to Davenport to pick up the

appellee without Mr. McKnight accompanying them, and

that the appellee would be brought directly back to Des

Moines. Mr. McKnight and the police also agreed that ap-

pellee would not be questioned until after he had been re-

turned to Des Moines and consulted with Mr. McKnight.

While the appellee was in Davenport in police custody,

and at his request, he consulted with a local attorney, Mr.

Thomas Kelly, who thereafter acted in his behalf while

the appellee was in Davenport. Mr. Kelly advised the ap-

pellee to remain silent until he had arrived in Des Moines

and consulted with Mr. McKnight.

After arriving in Davenport and before departing for

Des Moines, Detective Leaming advised the appellee of his

Miranda rights. These rights were not repeated during the

trip to Des Moines.

On the trip from Davenport to Des Moines, Detective

Leaming and the appellee sat in the rear seat of the car

with Detective Nelson driving. Leaming and the appellee

engaged in conversation. They discussed religion, appel-

lee’s reputation, appellee’s friends, police procedures,

aspects of the police investigation into this matter, and

various other topics.

At this time Detective Leaming knew that the ap-

pellee had been a patient in the state mental hospital at

Fulton, Missouri, for a period of about three years and that

he was an escapee therefrom.

A5

On several occasions during the return trip to Des

Moines appellee told Detective Leaming that he would

tell him the whole story after he returned to Des Moines

and consulted with his attorney, Mr. McKnight.

According to Detective Leaming’s own testimony, the

specific purpose of his conversation with appellee was to

obtain statements and information from appellee concern-

ing the missing girl before the appellee could consult with

Mr. McKnight.

The following testimony by Detective Leaming during

the hearing on the motion to suppress describes a portion

of his conversation with the appellee:

Eventually, as we were traveling along there, I

said to Mr. Williams that, “I want to give you some-

thing to think about while we’re traveling down the

road.” I said, “Number one, I want you to observe

the weather conditions, it’s raining, it’s sleeting, it’s

freezing, driving is very treacherous, visibility is poor,

it’s going to be dark early this evening. They are

predicting several inches of snow for tonight, and I

feel that you yourself are the only person that knows

where this little girl’s body is, that you yourself have

only been there once, and if you get a snow on top of

it you yourself may be unable to find it. And, since

we will be going right past the area on the way to

Des Moines, I feel that we could stop and locate the

body, that the parents of this little girl should be en-

titled to a Christian burial for the little girl who was

snatched away from them on Christmas Eve and mur-

dered. And I feel we should stop and locate it on the

way in rather than waiting until morning and trying

to come back out after a snow storm and possibly not

being able to find it at all.”

A6

In response to an inquiry by appellee, Leaming told

the appellee that he knew the body was somewhere in the

area of Mitchellville, a town 15 miles from Des Moines

and along the freeway between Davenport and Des Moines.

Leaming later testified that he did not, in fact, know that

the body was near Mitchellville.

Shortly before reaching the Mitchellville turnoff, the

appellee told Leaming that he would show him where the

body was located. Accompanied by other police officers

who were following them, they drove to a location desig-

nated by the appellee; the body of Pamela Powers was

found in a ditch alongside the highway.

Appellee’s statements and other evidence obtained

pursuant to such statements were admitted into evidence

at trial, all over the objections of appellee’s attorney.

Challenged Evidentiary Facts.

As noted heretofore, this case was submitted to the

United States District Court on the record of the facts and

proceedings in the state court. Under such circumstances,

a federal court in reviewing an application for writ of

habeas corpus is to presume as correct the facts as deter-

mined by the state court (subject to various exceptions).

28 U.S.C. § 2254(d).*

2. Section 2254(d) provides:

(d) In any proceeding instituted in a Federal court

by an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court, a de-

termination after a hearing on the merits of a factual issue,

made by a State court of competent jurisdiction in a pro-

ceeding to w’ ich the applicant for the writ and the State

or an officer or agent thereof were parties, evidenced by

a written finding, written opinion, or other reliable and ade-

quate written indicia, shall be presumed to be correct, unless

the applicant shall establish or it shall otherwise appear, or

the respondent shall admit—

(Continued on following page)

AT

The appellant contends here that the United States

District Court made certain findings of fact conivary to

the findings in the state court and therefore violated the

provisions of 28 U.S.C. § 2254(d).

The District Court specifically found that Mr. Kelly,

appellee’s Davenport attorney, had advised Detective Leam-

Footnote Continued—

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and fair

hearing;

(3) that the material facts were not adequately de-

veloped at the State court hearing;

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant in the

State court proceeding;

(5) that the applicant was an indigent and the State

court, in deprivation of his constitutional right, failed to

appoint counsel to represent him in the State court pro-

ceeding;

(6) that the applicant did not receive a full, fair, and

adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due pro-

cess of law in the State court proceeding;

(8) or unless that part of the record of the State

court proceeding in which the determination of such factual

issue was made, pertinent to a determination of the suf-

ficiency of the evidence to support such factual determina-

tion, is produced as provided for hereinafter, and the

Federal court on a consideration of such part of the record

as a whole concludes that such factual determination is

not fairly supported by the record:

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual determination

has been made, unless the existence of one or more ef the

circumstances respectively set_ forth in paragraphs num-

bered (1) to (7), inclusive, is shown by the applicant,

ctherwise appears, or is admitted by the respondent, or

unless the court concludes pursuant to the provisions of

paragraph numbered (8) that the record in the State court

proceeding, considered as a whole, does not fairly support

such factual determination, the burden shall rest upon the

applicant to establish by convincing evidence that the factual

determination by the State court wa: &rreeous.

AB

ing prior to his departure from Davenport with the appel-

lee that the appellee was not to be questioned until he

got to Des Moines and that Mr. Kelly had asked Leaming

that he be permitted to accompany the appellee to Des

Moines and that Leaming denied the request.

The District Court also found that Leaming knew

that the appellee was a deeply religious person and that

he used that knowledge to elicit incriminating statements

from the appellee.

The District Court also found that the misstatement

by Leaming that he knew the whereabouts of the body of

Pamela Powers had a compelling influence on the appellee

to make incriminating statements.

A review by this court of the record of the state pro-

ceedings reveals certain discrepancies between the testi-

mony of Mr. Kelly and Detective Leaming and certain

ambiguities in some of the testimony upon which the Dis-

trict Court relied in making its findings. The record also

indicates with regard to the facts challenged here that

the state court did not resolve “the merits of the factual

disputes.” Accordingly, where neither party has requested

an evidentiary hearing, the federal court is not constrained

in its fact findings by the presumption of correctness to

be given findings of the state court. 28 U.S.C. § 2254(d)

(1).

This court therefore finds that the District Court cor-

rectly applied 28 U.S.C. § 2254 in its resolution of the dis-

puted evidentiary facts, and that the facts as found by the

District Court had substantial basis in the record.

Waiver of Constitutional Rights.

Contrary to the findings of the state courts, the United

States District Court found that waiver is a question of

A9

law. Appellant suggests that the District Court has mis-

characterized the issue of waiver as one of law rather than

fact and, in so doing, has erroneously avoided the pre-

sumption of correctness to be given to the state courts’

factual resolutions.

In this case, the issue of whether appellee waived his

right to counsel can best be characterized as an “ultimate

fact” or as a “conclusion of fact.” The appellation of

“fact” or “law” is nevertheless not determinative here.

The significant element in deciding the scope of the fed-

eral review is that waiver involves ihe question of whether

appellee has exercised or relinquished a constitutional

right. As such, waiver becomes a federal question about

which the federal courts are obligated to make their own

independent determination. As said by Mr. Justice Black

in Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d

314, 317 (1966):

The question of a waiver of a federally guaran-

teed constitutional right is, of course, a federal ques-

tion controlled by federal law. There is a presump-

tion against the waiver of constitutional rights, see,

e.g., Glasser v. United States, 315 U.S. 60, 70-71, and

for a waiver to be effective it must be clearly estab-

lished that there was “an intentional relinquishment

or abandonment of a known right or privilege.” John-

son v. Zerbst, 304 U.S. 458, 464.

See also Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th

Cir. 1970); Doerflein v. Bennett, 405 F.2d 171 (8th Cir.

1969); Fugate v. Gaffney, 313 F.Supp. 128, 132 (D. Neb.

1970), aff'd, 453 F.2d 362 (8th Cir. 1971), cert. denied, 409

U.S. 888, 93 S.Ct. 142, 34 L.Ed.2d 145 (1972).

28 U.S.C. § 2254(d) was not intended to replace this

constitutional obligation of the federal court. In In re

Al0

Parker, 423 F.2d 1021, 1024 (8th Cir. 1970), cert. denied,

Parker v. South Dakota, 398 U.S. 966, Judge Lay stated it

this way:

To avoid misunderstanding, the statute does not

replace the federal court’s constitutional obligation to

make its own independent determination on federal

questions. The Supreme Court has made clear that a

federal court’s consideration of the constitutional ques-

tion shall be plenary. Townsend v. Sain, 372 U.S. 293,

312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). As Mr. Justice

Frankfurter said in Brown v. Allen, 344 U.S. 443, 506,

508, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1952):

“On the other hand, State adjudication of questions

of law cannot, under the habeas corpus statute, be

accepted as binding. It is precisely these questions

that the federal judge is commanded to decide.”

* * 2

“Although there is no need for the federal judge,

if he could, to shut his eyes to the State considera-

tion of such issues, no binding weight is to be at-

tached to the State determination. The congressional

requirement is greater. The State court cannot have

the last say when it, though on fair consideration

and what procedurally may be deemed fairness, may

have misconceived a federal constitutional right.”

The federal court is obligated to make a full and complete

review of the records of the state courts in order to com-

prehend the ‘otality of the circumstances upon which the

ultimate question of waiver must be determined. In John-

son Vv. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938), the United States Supreme Court stated:

It has been pointed out that “courts indulge every

reasonable presumption against waiver’ of funda-

All

mental constitutional rights and that we “do not pre-

sume acquiescence in the loss of fundamental rights.”

A waiver is ordinarily an intentional relinquishment

or abandonment of a known right or privilege. The

determination of whether there has been an intelli-

gent waiver of the right to counsel must depend, in

each case, upon the particular facts and circumstances

surrounding that case, including the background, ex-

perience, and conduct of the accused. (Emphasis sup-

plied. )

See also Escobedo vy. Illinois, 378 U.S. 478, 84 S.Ct. 1758,

12 L.Ed.2d 977 (1964); Stidham vy, Swenson, 15 Crim. Law

Rep. 2072 (8th Cir., March 28, 1974).

The District Court found that the state court had ap-

plied the wrong constitutional standard in its determina-

tion of the issue of waiver by failing to place the burden

on the prosecution to show that appellee had waived his

constitutional rights. Appellant contests this finding of

the District Court.

Miranda y. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966), places upon the prosecution the

heavy burden of demonstrating that the accused know-

ingly and intentionally waived his privilege against self-

incrimination and his right to have counsel present. The

The District Court here found that the state trial court

failed to place such burden upon the state prosecutor be-

fore it allowed into evidence incriminating staternents

made by appellee to Detective Leaming and that there-

fore the state court had applied the wrong constitutional

standard. Appellant points out that the District Court

may properly assume, in the absence of evidence to the

contrary, that the state court applied correct standards of

federal law to the facts when the state court does not

Al2

articulate the constitutional standards applied. Townsend

v. Sain, 372 U.S. 293, 314-315, 83 S.Ct. 747, 9 L.Ed.2d 770

(1963).

A review of the record here, however, discloses no

facts to support the conclusion of the state court that ap-

pellee had waived his constitutional rights other than that

appellee had made incriminating statements. Although

oral or written expression of waiver is not required.

waiver of one’s rights may not be presumed from a silent

record. Miranda v. Arizona, supra, 384 U.S. at 475; Carn-

ley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d

70, 77 (1962). The District Court here properly concluded

that an incorrect constitutional standard had been applied

by the state court in determining the issue of waiver.

Further, the resolution of the waiver issue by the state

court, although after fair consideration and following pro-

cedural due process, cannot be accepted as binding when

it has misconceived a federal constitutional right. Brown

v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 437, 97 L.Ed. 469

(1953); Townsend v. Sain, supra, 372 U.S. at 318; Doerflein

v. Bennett, supra. '

Appellant points out that this court recently held that

an accused can voluntarily, knowingly and intelligently

waive his right to have counsel present at an interroga-

tion after counsel has been appointed. See Moore v. Wolff,

495 F.2d 35 (8th Cir. 1973). The prosecution, however,

has the weighty obligation to show that the waiver was

knowingly and intelligently made. We quite agree with

Judge Hanson that the state here failed to so show.

In this case, appellee had obtained counsel in both Des

Moines and Davenport and had been advised of his Mi-

randa rights prior to departure from Davenport. Once

the Miranda warnings have been given, the subsequent

Al3

procedure to be followed by the police is well set forth

by the Supreme Court as follows:

Once warnings have been given, the subsequent

procedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must

cease. At this point he has shown that he intends to

exercise his Fifth Amendment privilege; any state-

ment taken after the person invokes his privilege can-

not be other than the product of compulsion, subtle

or otherwise. Miranda v. Arizona, supra, 384 U.S. at

473, 474. (Emphasis supplied. )

The facts in this case clearly indicate that the appellee

told Detective Leaming sevcral times during the automo-

bile trip to Des Moines that he would tell the whole story

after consulting with Mr. McKnight. Despite this indi-

cation by appellee that he wished to delay his statement

until he had consulted with his attorney in Des Moines,

Detective Leaming persisted in his “conversation” with

appellee with the admitted intent of obtaining informa-

tion before their arrival in Des Moines and appellee’s con-

sultation with his attorney there. By means of a subtle

form of interrogation, Leaming did obtain the incrimi-

nating statements from appellee.

It is pointed out by Judge Hanson, and also noted by

the state courts, that there was an agreement between the

Des Moines police and appellee’s Des Moines attorney that

appellee was not to be questioned before he reached Des

Moines. Although we deem it immaterial, there is sub-

stantial justification for the conclusion that Detective

Leaming was aware of such agreement. In any event,

Leaming violated the terms of the agreement when he

engaged in his subtle conversation with the appellee with

the specific and admitted intent of soliciting incriminat-

Al4

ing statements before their arrival in Des Moines and ap-

pellee’s consultation with Attorney McKnight.

The “particular facts and circumstances surrounding

[this] case, including the background, experience, and con-

duct of the accused” referred to by the Supreme Court

in Johnson v. Zerbst, supra, might be partially enumerated

as follows: (1) The appellee was an escapee from a mental

institution wherein he had been confined for approxi-

mately three years; (2) appellee asked for and obtained

an attorney to represent him at each end of the trip be-

tween Davenport and Des Moines; (3) Mr. Kelly, appel-

lee’s Davenport attorney, had asked permission to ac-

company the appellee on the trip from Davenport to Des

Moines, which permission was denied by the police; (4)

both attorneys had advised appellee not to make any state-

ments until after arriving in Des Moines and consulting

with Attorney McKnight; (5) appellee gave several in-

dications that he did not want to talk about the case until

after he arrived in Des Moines; (6) appellee stated a num-

ber of times that he would talk about the case after he had

seen Attorney McKnight in Des Moines; (7) by suble in-

terrogation Detective Leaming got the appellee to make

incriminating statements used to convict him; (8) the po-

lice violated an agreement they had with Attorney Mc-

Knight that the appellee was not to be questioned before

consultation with Mr. McKnight in Des Moines. Cf. Mas-

siah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d

246 (1964); United States ex rel Magoon v. Reincke, 304

F.Supp. 1014, aff'd 416 F.2d 69 (2d Cir, 1969); Taylor v.

Elliott, 458 F.2d 979 (5th Cir. 1972), cert. denied, 409 U.S.

885, 93 S.Ct. 117, 34 L.Ed.2d 142 (1972).

Under all of these circumstances, we find that Judge

Hanson was eminently correct in holding that the appel-

lee’s constitutional rights had been violated in that he was

Al5

denied the right to counsel and that he had not voluntarily,

intelligently and effectively waived his rights.

The decision and order of the District Court are af-

firmed. WEBSTER, Circuit Judge, dissenting.

I must respectfully dissent.

This habeas corpus case was tried to the District Court

by stipulation on the record of the state court proceed-

ings. To the extent that findings of fact were indisput-

ably made by the state trial judge, those facts are to be

taken as true unless they fall within the stated exceptions

of 28 U.S.C. §2254. See note 2 of the majority opinion,

supra. To the extent that additional facts were found by

the District Judge upon his review of the bare record,

without having heard any of the witnesses, we need give

such findings no special deference since the District Judge

was in no better position to make credibility judgments

than we find ourselves today. But conceding for purposes

of this opinion each of the so-called aisputed facts as found

by the District Judge, I find myselt in disagreement with

the ultimate conclusions reached in the majority opinion

that Williams “was denied his right to counsel and that

he had not voluntarily, intelligently and effectively waived

his rights.”

I.

It is not disputed that Williams was advised of his full

Miranda rights on three occasions: by Lieutenant Acker-

man of the Davenport Police Department, by the state

judge before whom he was brought upon his arrest and

by Captain Leaming upon his arrival in Davenport. There

is no suggestion that the advices given did not comport

with Constitutional standards or that Williams did not

understand their meaning. He expressly stated that he

did, and therefore understood, as he was told, that he had

Al6

the right to remain silent and to be represented by an

attorney during questioning. That Williams had thus re-

ceived effective advice appears to be conceded by the ma-

jority. We must next proceed to a consideration of whether

Williams thereafter intelligently and knowingly declined

to exercise his rights. Hughes v. Swenson, 452 F.2d 866

(8th Cir. 1971).

At the time of his arrest, Williams had already re-

tained Henry McKnight, a Des Moines attorney. Mc-

Knight advised him by telephone not to talk with the po-

lice until he returned to Des Moines. While in court at

Davenport, Williams observed and asked to speak with a

local attorney, Thomas Kelly. Kelly conferred with Wil-

liams two times in private. According to Williams, Kelly

then advised the police that Williams wouldn't be talking

to them until his return to Des Moines. Thus it is clear

to me that Williams was not only aware of his right to

counsel, he sought and received the advice of two attor-

neys and knew that both of them thought he should re-

main silent. The inference is clear that—putting aside

any question of coercion—any waiver thereafter was in-

telligently and knowingly made. Hughes v. Swenson, su-

pra.

The District Judge held Williams could not effectively

waive counsel for purposes of interrogation in the absence

of counsel. This was error. While recognizing that the

burden of showing a knowing and intelligent waiver is a

heavy one, we have held that such waiver can occur not-

withstanding that counsel has been appointed. Moore v.

Wolff, 495 F.2d 35 (8th Cir. 1974). Waiver is to be judged

from the whole record. United States v. Harden, 480 F.2d

649 (8th Cir. 1973). Express words of waiver are not re-

quired. Hughes v. Swenson, supra; United States y. Mon-

tos, 421 F.2d 215, 224 (5th Cir.), cert. denied, 397 U.S. 1022

Al7

(1970); United States v. Ganier, 436 F.2d 364, 369-370 (7th

Cir. 1970); United States y. Hilliker, 436 F.2d 101, 102-03

(9th Cir. 1970), cert. denied, 401 U.S. 958 (1971); Bond v.

United States, 397 F.2d 162, 165 (10th Cir.), cert. denied,

393 U.S. 1035 (1968).

The record reveals that as the police car began its re-

turn trip from Davenport to Des Moines, the car was driven

by Detective Nelson, with Captain Leaming and Williams

in the back seat. After a while Williams opened up a

conversation, asking such questions as whom the police

had talked to and whether there were any fingerprints.

They also talked about police procedures, religion, youth

groups and singing. Eventually Leaming made his obser-

vation about the weather and expressed the hope that

Williams would agree to stop and locate the body. (Quoted

in majority opinion at 5.) He prefaced his statement by

saying this was something he wanted Williams to think

about as they were travelling down the road. He con-

cluded this statement with another statement, not quoted

in the majority opinion:

I do not want you to answer me. I don’t want to dis-

cuss it any further.

The record reveals that sometime later, without any

further reference to Leaming’s suggestion, Will.ams sud-

denly asked, “Did you find her shoes?” He then directed

them to a filling station, where they made a fruitless

search for the child’s shoes. They returned to the free-

way, and as they passed a rest area on their left, Wil-

liams asked, “Did you find the blanket?” He then told

them he had disposed of the blanket at the rest area. They

turned around and returned to the rest area. They did

not find the blanket because it had already been located.

Again they returned to the freeway and resumed their ---

journey toward Des Moines. Still some distance east of

Als

Mitchellville, Williams suddenly said, “I’m going to show

you where the body is.’ They exited from the freeway

at the turn-off indicated by Williams, and after one or

two false turns, finally came to a place in the road where

the body was located in the snow.

Against this massive evidence of knowing and intelli-

gent waiver of the right to silence and to counsel curing

interrogation, the only fact asserted to the contrary is the

statement of Williams, made several times according to

Leaming, that “[w]hen I get to Des Moines and see Mr.

McKnight, I am going to tell you the whole story.” First,

this statement is ambiguous on its face. I do not find in

this assurance of cooperation an indication “in any man-

ner” that Williams wished to refrain from giving infor-

mation. See Miranda v. Arizona, 384 U.S. 436, 473-74

(1966). There is absolutely nothing in the record to sug-

gest that these statements were made in response to ques-

tions by Leaming; rather, the evidence is that prior to

Williams’ statement that he was going to show them where

the body was neither police officer was putting questions

to Williams. Williams brought up the shoes, Williams

brought up the blanket and Williams volunteered the

statement that he was going to show them the location

of the body.’

1. If, as the state judge found, an agreement not to question

Williams in the car had been made with counsel, this agreement

could hardly be said to preclude a waiver of counsel during a pre-

trial conversation, regardless of the serious reflection thereby cast

upon the police procedures employed. It is the accused in custody

who waives, not his counsel, and Williams was never at any time

told in any way that he had lost either his right to remain silent

or to have counsel present during an interrogation. Neither does

the record warrant any inference of incapacity because Williams

happened to be an escapee from a mental institution. The state

district judge ruled against Williams on this point, permitting

this fact in evidence only as bearing upon his criminal intent, and

the point is not preserved on this appeal.

Alg

It has been suggested that Williams’ admissions were

obtained by ruse and that his Sixth Amendment rights

were thus violated. The District Judge’s reliance upon

Massiah vy. United States, 377 U.S. 201 (1964), is misplaced.

There ii no doubt that Williams was in custody and en-

titled to counsel unless waived. The difference between

this case and Massiah, however, is that Williams knew his

statements were being noted by police officers, and he had

been expressly warned that such statements could be used

against him.

I entertain grave doubts whether a federal judge

should undertake to decide issues of credibility from a

bare record without an independent evidentiary hearing.

It was from such findings that the District Judge con-

cluded that Leaming had contrived to thwart Williams’

attorneys and thereby deprive him of assistance of coun-

sel. The state trial judge who heard the evidence con-

cluded otherwise; his assessment was sustained by the

Supreme Court of Iowa, and I likewise believe the record

supports the conclusions of waiver reached in the state

proceedings.

II.

A distinct but factually related issue to be resolved

is whether Williams’ statements were involuntary and

therefore produced in violation of his Fifth Amendment

rights. Schneckloth v. Bustamonte, 412 U.S. 218 (1973);

see Johnson y. Zerbst, 304 U.S. 458 (1938).

No promises were made to Williams, and the record

does not support any inference that the statements re-

sulted from this sort of inducement. See Hunter v. Swen-

son, No. 74-1261 (8th Cir., October 24, 1974); United States

A20

v. Johnson, 466 F.2d 1210 (8th Cir. 1972), cert. denied, 410

U.S. 916 (1973).

I am equally unpersuaded that the conversations in

the police automobile, or, for that matter, the totality of

the circumstances were so coercive that the statements of

Williams must be considered the product of a will over-

borne. See Townsend vy. Sain, 372 U.S. 293 (1963); Iver-

son v. North Dakota, 480 F.2d 414 (8th Cir.), cert. denied,

414 U.S. 1044 (1973). Williams himself initiated the dis-

cussions related to the crime. Williams himself asked

questions about the investigation. He was not subjected

to an intrusive examination. Each significant statement

(the shoes, the blanket, the location of the body) was

triggered, not by a police question, but by something Wil-

liams saw as they travelled along the freeway—a filling

station, a rest area, an exit ramp.”

Certainly, Officer Leaming planted a thought that it

would be useful and decent to locate the body as they

passed through the area. But he also told Williams not

to answer—just to think about it. If such conversations

can be deemed coercive, we will have turned the crimi-

nal justice system upon its head. As Mr. Justice Cardozo

once wrote:

[J]ustice, though due to the accused, is due to

the accuser also. The concept of fairness must not

be strained till it is narrowed to a filament. We are

to keep the balance true.

Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

2. Williams testified at the suppression hearing and once

again during the trial, in chambers. He asserted nothing in such

testimony from which the reviewing court could find additional

evidence of mistake or coercion.

A21

Ill.

I have carefully reviewed the record of the entire

state proceedings. What transpired in the police automo-

bile is clear. Williams understood his rights; he was

promised nothing; he was not coerced. To say this much

is not to approve of any techniques which involve mis-

representations to counsel, if in fact Leaming was guilty

of such acts as the District Judge found. But addressing

myself to the findings of the state district judge, I be-

lieve they are supported by the record. We skould not

advance the..Constitutional protection of the Fifth and

Sixth Amendments to strike down admissions knowingly

and intelligently made after full Miranda warnings and

advice of counsel on such unsupported factual inferences

as that Williams “gave several indications that he did not

want to talk about the case until after he arrived in Des

Moines.” (Majority opinion at 17.) A fair reading of the

record is that each statement was not in response to a

specific inquiry but was spontaneous. See United States

v. Stabler, 490 F.2d 345, 350-51 (8th Cir. 1974).

This was a brutal crime.’ The evidence of Williams’

guilt was overwhelming. No challenge is made to the

reliability of the fact-finding process; the statements dealt

not with guilt but with the location of evidence, and were

corroborated by other evidence. I cannot but assume that

the alleged “broken promise” of Captain Leaming is at

the root of the result reached in this case. If, as J be-

lieve, there was no violation of Williams’ Fifth or Sixth

Amendment rights, then the effect is to apply the federal

exclusionary rule in a state case to improve future police

3. The medical examiner testified that he found positive

evidence of seminal fluid in the mouth, rectum and vagina of

the body of the ten-year-old child. Death was by suffocation.

A22

procedures. This is not the case in which to make that

point. See Michigan v. Tucker, 42 U.S.L.W. 4887 (US.

June 10, 1974).*

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

APPENDIX B

The District Court opinion and judgment is reported

at 375 F. Supp. 170 (1974).

4. Just as the law does not require that a defendant re-

ceive a perfect trial, only a fair one, it cannot realistically require

tha policemen investigating serious crimes make no errors what-

soever. The pressures of law enforcement and the vagaries of

human nature would make such an expectatien unrealistic. Be-

fore we penalize police error, therefore, we must consider whether

the sanction serves a valid and useful purpose.

42 U.S.L.W. at 4891.

A23

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 74-1300

September Term, 1974

Robert Anthony Williams, etc.,

Appellee,

Lou V. Brewer, etc.,

Appellant.

Appeal from the United States District Court for the

Southern District of Iowa

The Court having considered petition for rehearing

en banc filed by counsel for appellant and, being fully

advised in the premises, it is ordered that the petition for

rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

Chief Judge Gibson with Judges Stephenson and Web-

ster voted to grant the petition for rehearing en banc.

January 30, 1975

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 74-1300

September Term, 1974

Robert Anthony Williams, a/k/a

Anthony Erthel Williams,

Appellee,

VS.

Lou V. Brewer, Warden of the Iowa State Penitentiary

at Fort Madison, Iowa,

Appellant.

Appeal from the United States Disirict Court for the

Southern District of Iowa.

On Consideration of Appellant’s motion for stay of

mandate, it is now here ordered by this Court that appel-

lant’s motion for stay of mandate in this cause be granted

pursuant to the following conditions:

The writ of release from custody should not issue for

a period of sixty (60) days from the date of this order.

The writ shall be suspended if the State of Iowa pur-

sues a new trial within the 60-day period.

Further, an application by the State of Iowa to the

United States Supreme Court for a writ of certiorari shall

stay the mandate of this Court. Should the Supreme

Court deny review, the State of Iowa shall have 60 days

from the date certiorari is denied in which to pursue a

new trial.

A25

Should the State of Iowa fail to pursue a new trial

within 60 days from the date of this order or from denial

or certiorari by the United States Supreme Court, appel-

lee must be released from custody.

February 6, 1975

APPENDIX E

Constitution of the United States, Amendment V:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger; nor

shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.”

Constitution of the United States, Amendment VI:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an im-

partial jury of the State and district wherein the crime

shall have been committed, which district shall have

been previously ascertained hy law, and to be in-

formed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his fa-

vor, and to have the Assistance of Counsel for his

defense.”

2 ee EE Oooo

A26

Constitution of the United States, Amendment XIV:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United Staies: nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

Title 28 U.S.C. §2254(d):

“In any proceeding instituted in a Federal court

by an application for a writ of habeas corpus by a per-

son in custody pursuant to the judgment of a State

court, a determination after a hearing on the merits

of a factual issue, made by a State court of competent

jurisdiction in a proceeding to which the applicant for

the writ and the State or an officer or agent thereof

were parties, evidenced by a written finding, written

opinion, or other reliable and adequate written indicia,

shall be presumed to be correct, unless the applicant

shall establish or it shall otherwise appear, or the re-

spondent shall admit—

“(1) that the merits of the factual dispute

were not resolved in the State court hearing;

“(2) that the factfinding procedure employed

by the State court was not adequate to afford a full

and fair hearing;

“(3) that the material facts were not ade-

quately developed at the State court hearing;

A27

“(4) that the State court lacked jurisdiction of

the subject matter or over the person of the appli-

cant in the State court proceeding;

“(5) that the applicant was an indigent and

the State court, in deprivation of his constitutional

right, failed to appoint counsel to represent him in

the State court proceeding;

“(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court pro-

ceeding; or

“(7) that the applicant was otherwise denied

due process of law in the State court proceeding;

“(8) or unless that part of the record of the

State court proceeding in which the determination of

such factual issue was made, pertinent to a determi-

nation of the sufficiency of the evidence to support

such factual determination, is produced as provided

for hereinafter, and the Federal court on a consid-

eration of such part of the record as a whole con-

cludes that such factual determination is not fairly

supported by the record:

And in an evidentiary hearing in the proceeding in

the Federal court, when due proof of such factual de-

termination has been made, unless the existence of

one or more of the circumstances respectively set forth

in paragraphs numbered (1) to (7), inclusive, is shown

by the applicant, otherwise appears, or is admitted by

the respondent, or unless the court concludes pursuant

to the provisions of paragraph numbered (8) that the

record in the State court proceeding, considered as a

whole, does not fairly support such factual determi-

nation, the burden shall rest upon the applicant to

A28

establish by convincing evidence that the factual de-

termination by the State court was erroneous.”

Title 18 U.S.C. $3501, Omnibus Crime Control and Safe

Streets Act of 1968:

“$3501. Admissibility of confessions

“(a) In any criminal prosecution brought by the

United States or by the District of Columbia, a con-

fession, as defined in subsection (e) hereof, shall be

admissible in evidence if it is voluntarily given. Be-

fore such confession is received in evidence, the trial

judge shall, out of the presence of the jury, determine

any issue as to voluntariness. If the trial judge de-

termines that the confession was voluntarily made it

shall be admitted in evidence and the trial judge shall

permit the jury to hear relevant evidence on the issue

of voluntariness and shall instruct the jury to give

such weight to the confession as the jury feels it de-

serves under all the circumstances.

‘““(b) The trial judge in determining the issue of

volurtariness shall take into consideration all the cir-

cumstances surrounding the giving of the confession,

including (1) the time elapsing between arrest and

arraignment of the defendant making the confession,

if it was made after arrest and before arraignment,

(2) whether such defendant knew the nature of the

offense with which he was charged or of which he

was suspected at the time of making the confessicn,

(3) whether or not such defendant was advised or

knew that he was not required to make any state-

ment and that any such statement could be used

against him, (4) whether or not such defendant had

been advised prior to questioning of his right to the

assistance of counsel; and (5) whether or not such

A29

defendant was without the assistance of counsel when

questioned and when giving such confession.

“The presence or absence of any of the above-

mentioned factors to be taken into consideration by

the judge need not be conclusive on the issue of vol-

untariness of the confession.

“(c) In any criminal prosecution by the United

States or by the District of Columbia, a confession

made or given by a person who is a defendant therein,

while such person was under arrest or other deten-

tion in the custody of any law-enforcement officer or

law-enforcement agency, shall not be inadmissible

solely because of delay in bringing such person before

a magistrate or other officer empowered to commit

persons charged with offense against the laws of the

United States or of the District of Columbia if such

confession is found by the trial judge to have been

made voluntarily and if the weight to be given the

confession is left to the jury and if such confession

was made or given by such person within six hours

immediately following his arrest or other detention:

Provided, That the time limitation contained in this

subsection shall not apply in any case in which the

delay in bringing such person before such magistrate

or other officer beyond such six-hour period is found

by the trial judge to be reasonable considering the

means of transportation and the distance to be traveled

to the nearest available such magistrate or other of-

ficer.

“(d) Nothing contained in this section shall bar

the admission in evidence of any confession made or

given voluntarily by any person to any other person

without interrogation by anyone, or at any time at

A30

which the person who made or gave such confession

was not under arrest or other detention.

“(e) As used in this section, the term ‘confes-

sion’ means any confession of guilt of any criminal of-

fense or any self-incriminating statement made or

given orally or in writing.

“Added Pub L. 90-351, Title II, §$701(a), June 19,

1968, 82 Stat 210, and amended Pub L 90-578, Title III

$30l(a) (3), Oct. 17, 1968, 82 Stat 1115.”