# Petition — Brewer v. Williams

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2094%3A01

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 387

## Text

———

° 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

A24

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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2094%3A01. Public record. Not legal advice.