Appendix — Brewer v. Williams

APR 12 1975

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1263

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

SUPPLEMENTAL APPENDIX

RICHARD C. TURNER

Attorney General of Iowa

RICHARD N. WINDERS

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Petitioner

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

INDEX

Appendix F—Opinion of the United States District

Court for the Southern District of Iowa, Filed March

Re EE rere CDR RO PAROS Al

EE RE IR Ree erenree en snem eRe NE rm A32

~~

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-1263

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

SUPPLEMENTAL APPENDIX

Pursuant to Supreme Court Rule 23(i), the opinion

and order of the United States District Court for the

Southern District of Iowa, referred to in Appendix B, is

set out in its entirety.

Al

APPENDIX F

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

Civil No. 72-257-2

ROBERT ANTHONY WILLIAMS a/k/a

ANTHONY ERTHEL WILLIAMS,

Petitioner,

Vv.

LOU V. BREWER, Warden of the Iowa State

Penitentiary at Fort Madison, Iowa,

Defendant.

MEMORANDUM AND ORDER

I

The Court issues this Order pursuant to the Petition

for Writ of Habeas Corpus filed by Robert Anthony Wil-

liams challenging his May 6, 1969 conviction of murder

($690.2, Code of Iowa 1966) in the District Court of Iowa

in and for Polk County, Criminal No, 55805. The issues

which Petitioner now is presenting to this Court were

timely raised at the trial court level and on appeal to the

Supreme Court of Iowa; the latter Court affirmed Peti-

tioner’s conviction in State v. Williams, 182 N.W.2d 396

(1971). Thus, there is no question that Petitioner has ex-

hausted his available state remedies as required by 28

U.S.C. §2254.

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II

The central issue raised by Petitioner at trial, on ap-

peal to the Supreme Court of Iowa, and in this Court, is

whether certain statements made by Petitioner to a Des

Moines police officer, Detective Leaming, during an auto-

mobile trip from Davenport, jowa, to Des Moines, Iowa—

and other evidence and testimony obtained as a result of

those statements—were properly admitted into evidence

under the Fifth, Sixth and Sourteenth Amendments to the

United States Constitution. In this Court, the attorneys

for the State of Iowa and for the Petitioner agreed that the

case would be submitted on the record of facts and pro-

ceedings in the trial court. without taking of further tes-

timony. Based on its examination of that record, the Court

makes the following findings of fact relative to the issues

raised herein.

1. On December 24, 1968, a family by the name of

Powers attended a wrestling tournament in the YMCA

building in Des Moines, Iowa. When Pamela Powers, aged

ten, failed to return from a trip to the restroom, a search

was instituted, but she could not be found. YMCA per-

sonnel subsequently called the police. 182 N.W.2d at 399.

2. Suspicion rather quickly was focused on the Peti-

tioner, who had left the YMCA in his automobile shortly

after Pamela Powers’ disappearance. On December 25,

1968, Petitioner’s car was found in Davenport, Iowa, ap-

proximately 160 miles east of Des Moines, and a search was

instituted for him in the Davenport area by the Davenport

and Des Moines police and by the Iowa Bureau of Criminal

Investigation. 182 N.W.2d at 399. At about this time, a

warrant for Petitioner’s arrest, on a charge of child-steal-

ing, was issued and filed in Polk County. R. at 16, 108.

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3. On the morning of December 26, 1968, Petitioner

called his Des Moines attorney, Mr. Henry McKnight, from

Rock Island, Illinois. Mr. McKnight advised Petitioner to

surrender himself to the Davenport police. 182 N.W.2d

at 406; R. at 67.

4. At approximately 8:40 a.m. on December 26, 1968,

Petitioner did surrender himself to the Davenport police.

He was placed under arrest and booked by the Davenport

police. At 11:00 a.m. on the same day, Petitioner was ar-

raigned before a state court judge in Davenport as a fugi-

tive to be held on the Polk County warrant, and notified of

the charges against him. R. at 16-17.

5. Following his telephone conversation with Peti-

tioner on December 26, 1968, Mr. McKnight proceeded to

the Des Moines Police Department, where he talked to

various officials, including Detective Leaming, about the

Petitioner’s proposed surrender and his subsequent trans-

portation to Des Moines. 182 N.W.2d at 399, 406; R. at 10,

25, 128-29. While Mr. McKnight was at the Des Mcines

Police Department, he received a long distance telephone

call from Petitioner, who at that time was in custody in

Davenport. Mr. McKnight told Petitioner that he would be

picked up in Davenport, that he would not be mistreated

or grilled, that they would talk it over in Des Moines, and

that Petitioner should make no statement until he reached

Des Moines. 182 N.W.2d [sic] at 399, 406; R. at 11, 21, 67.

Mr. McKnight’s portion of this conversation was carried

on in the presence of Chief of Police Wendell Nichols and

Detective Leaming. 182 N.W.2d at 406; R. at 11, 25, 116,

130.

6. As a result of these conversations, it was agreed

that Detective Leaming would go to Davenport to pick up

Petitioner, without Mr. McKnight, and bring him directly

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back to Des Moines. R. at 11, 131. At this time there

also was an agreement between Mr. McKnight and the

police that the Petitioner would not be questioned until

after he had returned to Des Moines and consulted with

Mr. McKnight. R. at 34.

7. On December 26, 1968, Detective Leaming drove

from Des Moines to Davenport to pick up the Petitioner;

Detective Leaming was accompanied by Detective Arthur

Nelson. 182 N.W.2d at 399; R. at 113.

8. While he was in Davenport, the Petitioner con-

sulted with a local attorney, Mr. Thomas Keily, about his

situation. Petitioner had asked to talk with Mr. Kelly, and

their conversations were carried on in the context of an

attorney-client relationship. While Petitioner was in

Davenport, Mr. Kelly in effect acted as his attorney. R.

at 109-110, 67-68, 180-184. Mr. Kelley advised Petitioner

to remain silent until he got to Des Moines and talked

with Mr. McKnight. 182 N.W.2d at 406; R. at 23-24.

9. Detectives Leaming and Nelson arrived in Daven-

port at about noon on December 26. After meeting Mr.

Kelly and being informed that Petitioner was eating lunch,

Leaming and Nelson went to lunch. When they returned

at approximately 1:00 p.m., they had some conversation

with Mr. Kelly and Petitioner. At this time Detective

Leaming gave Petitioner his Miranda warnings; these

warnings were not repeated during the trip to Des Moines.

When Detective Leaming gave these Miranda warnings,

he told Petitioner that they would be “visiting” during

the trip to Des Moines. 182 N.W.2d at 406; R. at 26, 114.

10. After the Miranda warnings referred to in the

preceding paragraph were given, Petitioner again con-

ferred privately with Mr. Kelly, whom Detective Leaming

understood to be acting as Petitioner’s attorney (in addi-

AS

tion to Mr. McKnight). R. at 26-27, 114-115. After this

conference, Mr. Kelly again spoke with Detective Leaming.

Mr. Kelly told Detective Leaming that it was his under-

standing that Petitioner was not to be questioned until

he got to Des Moines; when Detective Leaming expressed

some reservations, Mr. Kelly stated that that understanding

should be carried out. R. at 21, 182-83.

11. Before Detective Leaming left for Des Moines

with the Petitioner, Mr. Kelly asked Detective Leaming

that he be permitted to ride along in the police car to Des

Moines. This request was refused by Detective Leaming.

182 N.W.2d at 406; R. at 183.

12. On several occasions during the trip to Des

Moines, and after the aforementioned Miranda warnings

were given in Davenport, Petitioner told Detective Leam-

ing that he would talk to him after he returned to Des

Moines and consulted with his attorney, Mr. McKnight.

182 N.W.2d at 406; R. pp. 27-28, 30, 33. The Miranda warn-

ings were never repeated during the trip itself. R. at 133.

13. The Petitioner had been a patient at the State

Mental Hospital at Fulton, Missouri for three years prior

to his escape on July 6, 1968. Petitioner also was a person

of a deeply religious nature. These facts were known to

the Des Moines police, including Detective Leaming, at the

time the Petitioner returned to Des Moines from Davenport

with Detective Leaming. 182 N.W.2d at 406; R. at 67, 119,

133, 148.

14. Following the giving of Miranda warnings by

Detective Leaming, Petitioner did not state that he wished

to waive his Miranda rights. In fact, as noted in Paragraph

12, supra, Petitioner indicated that he did not wish to talk

on the trip by stating that he would talk after he got to

Des Moines and spoke with Mr. McKnight. Nevertheless,

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while Detective Nelson drove, Detective Leaming carried

on a conversation with Petitioner during the trip concern-

ing religion, Petitioner’s reputation, and various other

topics, including Petitioner’s friends, Petitioner’s Rev-

erend, a Mr. Searcy, whether the police had checked for

fingerprints in Petitioner’s room, the intelligence of other

people, police procedures, organizing youth groups, sing-

ing, playing a piano, playing an organ, “and this sort of

thing.” 182 N.W.2d at 406-407; R. at 19. At about this

time, Detective Leaming also testified that he told Peti-

tioner that he did not hate him or wish to kill him; that

“I myself had had religious training and background as a

child, and that I would probably come more near praying

for him than I would to abuse him or strike him”: and that

he was a good police officer and would protect Petitioner

and not allow anyone to molest or abuse him. R. at 118-

19; T. at 222.

15. According to Detective Leaming’s own testimony,

the specific purpose of this conversation was to obtain

statements and information from the Petitioner concerning

the missing girl. In this regard, the following testimony

by Detective Leaming on cross-examination during pre-

trial proceedings in thé Polk County District Court is par-

ticularly relevant:

Q. Now, when you left, just before you left, do you

remember we had parted greetings and didn’t you say,

‘T'll go get him and bring him right back here to Des

Moines’? A. Yes, sir.

Q. You said that to me, didn’t you? A. Yes, sir.

Q. Knowing that you were dealing with a person

from a mental hospital, did you say to him, you don’t

have to tell me this information, did you say that to

him out there on the highway? A. What informa-

tion?

A7

Q. The information that he gave you, the defendant

gave you, you didn’t say that to him, did you? A.

No, sir.

Q. In fact, Captain, whether he was a mental patient

or not, you were trying to get all the information you

could before he got to his lawyer, weren’t you? A.

I was sure hoping to find out where that little girl

was, yes, sir.

e e >

Q. Well, I'll put it this way: You were hoping to

get all the information you could before Williams got

back to McKnight, weren’t you? A. Yes, sir.

R. at 136-37. See also, R. at 133-34, 135.

16. Detective Leaming specifically appealed to Peti-

tioner’s known religious nature in order to obtain state-

ments from him concerning the whereabouts of the missing

girl. The following testimony by Detective Leaming him-

self, describing what he said to the Petitioner, clearly sets

out the approach which he used:

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 freez-

ing, driving is very treacherous, visibility is poor, it’s

going to be dark early this evening. They are predict-

ing 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 into

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

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

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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.’ R. at 120.

17. Following this statement, Petitioner asked why

Detective Leaming felt that they were going past the body,

and Detective Leaming told Petitioner that he knew the

body was somewhere in the area of Mitchellville, a town

near Interstate 80. Detective Leaming then stated, “I do

not want you to answer me. I don’t want to discuss it

further. Just think about it as we’re riding down the

road.” R. at 120-21.

18. In fact, Detective Leaming did not know that

the body was near Mitchellville, and he made the state-

ment to Petitioner specifically to induce Petitioner to tell

him where the body was. R. at 135.

19. At some point east of Grinnell, Iowa, and after the

conversation outlined in Paragraphs 14 and 17, supra, Pe-

titioner asked if the police had found the victim’s shoes.

Without any further constitutional warnings, Detective

Leaming discussed with Petitioner what evidence had been

found, where Petitioner l.ad put the shoes, and what the

shoes looked like. A stop at a gas station where the shoes

were supposed to be produced no results. 182 N.W.2d

at 404; R. at 121-22.

20. Following this incident, there was some further

discussion of a blanket; a stop at a rest area disclosed that

the blanket already had been found. 182 N.W.2d at 404:

R. at 122-23.

21. After the stop at the rest area, there was further

discussion about “people and religion and intelligence and

Ag

friends of [Petitioner’s], and what people’s opinion was

of him and so forth.” Then, “some distance still east of the

Mitchellville turnoff,” Petitioner stated that he would show

the detectives where the body was. 182 N.W.2d at 404,

407; R. at 123.

22. Following Petitioner’s statement, the police, in-

cluding Detective Leaming, drove to a place indicated by

Petitioner, where they located the body of Pamela Pow-

ers. 182 N.W.2d at 404; R. at 124-25, 145-47.

23. Although Detective Leaming’s automobile was not

equipped with a radio capable of reaching Des Moines dur-

ing most of the trip, a state car which,was following at

all times was equipped with such a radio. This radio was

in fact utilized to keep in touch with Chief Nichols. Chief

Nichols was informed of the side trip to Mitchellville, but

did not relay this information to Mr. McKnight. R. at 12-

13, 150 (11. 20-23).

24. As noted above, Petitioner’s statements of Decem-

ber 26, 1968, to Detective Leaming were admitted into evi-

dence at Petitioner’s trial, along with other evidence ob-

tained pursuant to these statements, all over Petitioner’s

objections. 182 N.W.2d at 398-99.

Most of the facts found above are not disputed by

either party. Specifically, there has been no dispute about

the facts set out in Paragraphs 1 through 5, 7 through 9,

and 12 through 24, supra. However, there was some dis-

pute in the record, at oral argument, and in the briefs

over some of the facts in the remaining Paragraphs (6, 10

and 11), and the Court deems it appropriate at this point

to set out briefly how it resolved these disputes.

First, the State disputed whether an agreement was

entered into by Detective Leaming with Petitioner’s attor-

ney that the Petitioner would not be questioned by the

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police on the return trip from Davenport (see Paragraph

6, supra). However, the Court finds this dispute easily

resolved in light of the trial court’s specific finding of fact

that such an agreement did exist, and in light of that same

Court’s explicit doubts as to the testimony of Detective

Leaming.’

Second, the State disputed whether Mr. Kelly, after

conferring with Petitioner on an attorney-client basis, re-

quested permission to ride to Des Moines with Petitioner

and Detective Leaming (Paragraph 11, supra). Detective

Leaming denied that there was such a request; both Peti-

tioner and Mr. Kelly, who was a duly licensed member of

the bar of Iowa, testified that there was. In light of Peti-

tioner’s obvious self-interest in the matter, the Court has

discounted for the most part his testimony on this point.

The Court has carefully reviewed the transcript of the

testimony of Attorney Kelly and Detective Leaming. Tak-

ing the record of all the testimony in this case as a whole,

the Court must reconcile discrepancies between the testi-

mony of Detective Leaming and Mr. Kelly in favor of the

Petitioner, and the Court so finds that there was a request

by Mr. Kelly to accompany the Petitioner to Des Moines.”

The Court has also resolved in Petitioner’s favor the con-

flict in the record over whether Mr. Kelly told Detective

Leaming that Petitioner was not to talk until after he

reached Des Moines (see Paragraph 10, supra).

None of the preceding findings of fact conflicts with

any of the factual findings made by the state trial court.

The question remaining is whether the state courts cor-

1. This finding by the trial court is amply supported by

the testimony of Wendell Nichols, Chief of Police of Des Moines,

and by the cross-examination of Detective Leaming.

2. The state court made no findings of fact oc: this issue

apparently because it regarded it as irrelevant to the admissibility

of the challenged evidence.

All

rectly applied the law to the facts in permitting the chal-

lenged evidence to be admitted. The conclusion of this

Court is that the evidence was improperly admitted and

that Petitioner’s request for release must be granted.

III

On the basis of the facts outlined above, Petitioner

argues that both his Fifth and Sixth Amendment rights

were violated when the statements described above were

elicited from him during the Davenport-Des Moines trip

with Detective Leaming and Nelson. The Court begins

with the Sixth Amendment argument.

Petitioner centers his claim of Sixth and Fourteenth

Amendment violations around the case of Massiah v.

United States, 377 U.S. 201 (1964). In Massiah, the de-

fendant hod been indicted and was represented by coun-

sel. In order to obtain incriminating statements from the

defendant, the police arranged for an alleged accomplice of

the defendant to meet with the defendant in the accom-

plice’s car; the car was equipped with a radio transmitter

which enabled a government agent to hear incriminating

statements made by the defendant to the alleged accom-

plice; these statements were introduced at trial over the

defendant’s objections. The United States Supreme Court

reversed the defendant’s conviction, holding that the de-

fendant’s right to counsel under the Sixth Amendment had

been violated when the government agents obtained his

statements through deception and in the absence of coun-

sel.

. The Massiah opinion left open the question of the

stages to which the Sixth Amendment right to counsel at-

taches. The Respondent has not challenged Petitioner’s as-

serticn that the automobile trip in question in this case

was such a stage; nevertheless, some preliminary attention

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to this point is appropriate. In Kirby v. Illinois, 406 U.S.

682 (1972), the Supreme Court held that a Sixth Amend-

ment right to counsel at a line-up exists only after “the

initiation of adversary judicial criminal proceedings—

whether by way of formal charge, preliminary hearing, in-

dictment, or arraignment.” 406 U.S. at 686. Petitioner has

suggested a large number of factors indicating the initiation

of “adversary judicial criminal proceedings” prior to the

automobile trip in question. Although the Court cannot

agree with all of them, three factors do show conclusively

that the Kirby test was met in this case: (1) an arrest

warrant for Petitioner, charging him with child-stealing

had been issued in Polk County; (2) Petitioner was ar-

rested on the warrant and booked in Davenport; and (3)

Petiticner was arraigned in Davenport on the Polk County

warrant.

Since the submission of this case, the Supreme Court

has decided another case which further supports the con-

clusion that the Sixth Amendment guarantees outlined in

Massiah apply to the instant situation. In United States v.

Ash, 413 U.S. 300 (1973), the Supreme Court held that a

pretrial event is a “critical stage” at which the accused has

a right to counsel when the accused requires aid in coping

with legal problems or help in meeting his adversary in a

confrontation-type situation. The Court explicitly held

Massiah as falling within this analysis, because in that case

‘the accused was confronted by prosecuting authorities who

obtained by ruse and in the absence of defense counsel, in-

criminating statements.” 413 U.S. at 311. Clearly, in this

case also, Petitioner was protected by the right of counsel

during the trip from Davenport to Des Moines.

This leaves the question of whether Petitioner’s right

to counsel was violated during that trip, the answer clearly

is in the affirmative. Like the defendant in Massiah, Peti-

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ticner not only had a right to counsel during the time in

question, he actually had arranged for counsel. As in

Massiah, the authorities used a ruse to obtain statements

from the defendant in the absence of counsel: Detective

Leaming obtained statements from Petitioner in the ab-

sence of counsel (1) after making, and: then breaking, an

agreement with Mr. McKnight that Petitioner would not

be questioned until he arrived in Des Moines and saw Mr.

McKnight; (2) after being told by both Mr. McKnight and

Mr. Kelly that Petitioner was not to be questioned until

he reached Des Moines; (3) after refusing to allow Mr.

Kelly, whom Detective Leaming himself regarded as Peti-

tioner’s co-counsel, to ride to Des Moines with Petitioner;

and (4) after being told by Petitioner that he would talk

after he reached Des Moines and Mr. McKnight. By vio-

lating or ignoring these several, clear indications that Peti-

tioner was to have counsel during interrogation, Detective

Leaming deprived Petitioner of his right to counsel in a

way similar to, if not more objectionable than, that utilized

against the defendant in Massiah.*

Respondent, and Detective Leaming in his testimony

in the state court record, have argued that Detective Leam-

ing’s “conversations” with Petitioner did not amount to “in-

terrogation,” apparently because Detective Leaming’s ini-

tial statements to Petitioner did not end with a question

mark. However, quite apart from the fact that Detective

Learming clearly did ask many questions of Petitioner con-

cerning the whereabouts of the body (in the absence either

of counsel or any mention by Detective Leaming of the

availability of counsel), Detective Leaming’s initial “state-

3. Recently the Eighth Circuit Court of Appeals in United

States v. Stabler, 490 F.2d 345, 350 (1974), stated that a de-

fendant’s spontaneous confession was admissible. That case must

be distinguished as completely inapposite to the present case,

given the mental coercion and promptings of Detective Leaming

after the Petitioner had been isolated from his attorneys.

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ments” tc Petitioner concerning the weather, the desirabil-

ity of a Christian burial for the victim, and Detective

Leaming’s “knowledge” that the body was near Mitchell-

ville clearly amounted to interrogation. The statements

explicitly encouraged incriminating responses, and by De-

tective Leaming’s own admission, they specifically were

intended to produce such responses. The “staternents” by

Detective Leaming were as much interrogation as the

methods used in Massiah, and to hold them to be anything

less would be to reach an absurd result purely on the basis

of punctuation.

Although the Massiah decision adequately covers the

Sixth Amendment issue in this case, the Court notes that

at least two Circuit Courts of Appeal have found Sixth

Amendment violations in similar situations in which gov-

ernment authorities have ignored demands by counsel

that interrogation take place only in their presence. In

United States ex rel. Magoon v. Reincke, 304 F.Supp. 1014

(D. Conn. 1968), affirmed, 416 F.2d 69 (2d Cir. 1969),

the defendant had been formally arrested and given

Miranda warnings.

In a phone conversation, his attorney told the defen-

dant’s interrogators to cease interrogation until he arrived.

This demand was ignored, and statements were obtained

from the defendant in his counsel’s absence. The District

Court held that:

{O]nce an attorney representing a suspected felon

upon whom investigation has focused contacts the po-

lice officer in whose charge he is held and informs

him that he does not want him interrogated further,

to admit into evidence statements thereafter obtained

from the accused by police interrogation in the ab-

sence of counsel violates the defendant’s constitutional

rights. 304 F.Supp. at 1019.

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In Taylor v. Elliot, 458 F.2d 979 (5th Cir. 1972), cert.

denied, 409 U.S. 884 (1972), police officers transporting

the defendant from Dublin, Georgia to Birmingham, Ala-

bama ignored the defendant’s mother’s statements, relaying

advice from his attorney, that he was to make no state-

ments until he arrived in Birmingham. The confession

obtained by the officers during the trip was introduced

into evidence at defendant’s trial. The Court of Appeals

reversed defendant’s conviction, holding that the interroga-

tion in the face of the officer’s knowledge that defendant

had counsel who was absent but who had instructed him

not to make any statement violated the defendant’s Sixth

Amendment rights. 458 F.2d at 980. See also, Clifton

v. United States, 341 F.2d 649 (5th Cir. 1965); United

States v. Wedra, 343 F.Supp. 1183 (S.D. N.Y. 1972).

The above discussion has ignored one of the main

thrusts of both the Respondent’s argument and decisions

of state courts in this case: that Petitioner waived his

Sixth Amendment rights during the automobile trip in

question. The Court’s conclusion, more fully explicated

in Section V, infra, that Petitioner clearly did not waive

his Fifth or Sixth Amendment rights directly answers

this argument. Moreover, given the factual context of

this case, this Court is of the opinion that Petitioner could

not effectively waive his right to counsel for purposes

of interrogation in the absence of counsel (or at least

notice to his counsel of the interrogation). See McLeod

v. Ohio, 381 U.S. 356 (1965); Mathies v. United States,

374 F.2d 312 (D.C. Cir. 1967) (opinion by Burger, J.);

United States ex rel. Magoon v. Reincke, supra; Taylor

v. Elliot, supra; United States ex rel. Chabonian v. Liek,

366 F.Supp. 72 (E.D. Wisc. 1973); United States v. Durham,

475 F.2d 208 (7th Cir. 1973). When the police have agreed

with the defendant’s attorney that the defendant will not

be questioned in the attorney’s absence, when another

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attorney has asked to be with the defendant at a particular

time and place, and when the defendant has repeatedly

asserted his desire not to talk in the absence of counsel,

the police plainly should not be permitted to interrogate

the defendant at all until further notice is given to his

counsel. To hold otherwise would make it impossible for

defense counsel fully to protect his client’s rights without

staying with him 24 hours a day. See, United States

v. Wedra, supra, at 1184, 1186.

IV

We now turn to Petitioner’s argument that the facts

of this case show violations of the holdings in Escobedo

v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona,

384 U.S. 436 (1965). In Escobedo, police officers resisted

efforts by both the defendant and his counsel to have

counsel present during interrogation; statements obtained

from the defendant in the absence of counsel were admitted

into evidence at his trial. The Supreme Court reversed,

holding that when a person is in custody and suspicion

has focused on him, he has a right to have counsel present

during interrogation.

Petitioner clearly was in custody and suspicion clearly

had focused on him when the automobile trip in question

occurred, and Escobedo therefore applies. From this point,

the analysis is strikingly similar to the Massiah analysis

set out earlier in this opinion. Detective Leaming’s actions

in breaking his agreement with Mr. McKnight that Peti-

tioner would not be questioned during the Davenport-

Des Moines trip, in refusing to allow Mr. Kelly to ride

along, and in ignoring Petitioner’s statements that he would

talk after he reached Des Moines were aimed at preventing

the presence of counsel when he first talked with Peti-

tioner with the express purpose of obtaining incriminating

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statements; this was a clear and direct violation of Es-

cobedo holding.*

Petitioner also has argued that the elicitation of state-

ments from him during the trip from Davenport to Des

Moines violated the standards set out in Miranda v. Ari-

zona, 384 U.S. 436, 86 S.Ct. 1602, 12 L.Ed.2d 977 (1965).

Petitioner does not seriously dispute that Miranda warn-

ings were given to him, and this Court has found that

these warnings were given by the Davenport police when

Petitioner was placed under arrest, by the state court

judge at the Davenport arraignment, and by Detective

Leaming before the automobile trip began. Nevertheless,

this Court is compelled to conclude that the standards

set out in Miranda were violated by Detective Leaming’s

actions subsequent to the warnings.

The Miranda holding requires, as an initial matter,

that before a person in custody is questioned by the police,

he must be warned (1) that he has a right to remain

silent; (2) that anything he says can be used against him

in court; (3) that he has the right to the presence of

an attorney; and (4) that if he cannot afford an attorney

one will be appointed for him. But Miranda does not

simply require these warnings and then permit interroga-

tion to continue automatically. For example,

{ijJf 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 statement taken

after the person invokes his privilege cannot be other

than the product of compulsion, subtle or otherwise.

384 U.S. at 473-74 (emphasis added).

4. Again, there is a question of waiver, which is dealt with

in Section V, wmfra.

Al8 .

According to Detective Leaming’s own testimony, Peti-

tioner on several occasions stated that he would talk about

the case after he arrived in Des Moines and saw Mr.

McKnight; and Mr. Kelly also told Detective Leaming

that Petitioner was not to talk until he saw Mr. McKnight

in Des Moines. All of these statements were made after

the Miranda warnings were given when Detective Leaming

first met Petitioner at 1:14 p.m.—warnings which were

never repeated during the remainder of the trip. Clearly,

Petitioner and Mr. Kelly indicated, not just “in any man-

ner,” but directly and explicitly, that Petitioner wished

to remain silent during the automobile trip. Under

Miranda, interrogation should have ceased; but Detective

Leaming, with the specific intent to obtain incriminating

statements, and with knowledge of Petitioner’s background

of mental illness, encouraged Petitioner to talk by playing

on his sympathies and by talking about his own ‘“‘knowl-

edge” as to the location of the body. The fact that state-

ments were obtained in this way eloquently illustrates

the validity of the Supreme Court’s conclusion in Miranda

that “statements taken after the person invokes his priv-

ilege cannot be other than the product of compulsion,

subtle or otherwise.” 384 U.S. at 474.

Quite apart from Detective Leaming’s failure to cease

interrogation after Petitioner expressed his desire to re-

main silent, his further failure te repeat the warnings

at any time after his first meeting with Petitioner—and

especially after Petitioner made his first incriminating

statement—violated the Miranda holding. After outlining

the warnings required before in-custody interrogation, the

Supreme Court held that “[o]pportunity to exercise these

rights must be afforded .. . throughout the interrogation.”

384 U.S. at 478. In United States v. Nielson, 392 F.2d

849 (7th Cir. 1968), the defendant was arrested and given

Miranda warnings; he was then offered a “waiver of rights”

Alg

form by the interrogating officers. The defendant re-

sponded that “I am not signing anything until I have

occasion to talk to [my lawyer].” 392 F.2d at 851. When

given the opportunity to call his lawyer, he said that

“it could wait.” He was then asked several questions,

which he answered in the negative; these answers were

then admitted into evidence at his trial. The Court of

Appeals reversed the conviction, holding that when a de-

fendant expresses a willingness to talk after expressing

his desire to remain silent, Miranda requires that the police

make further inquiry “before continuing the questioning

to determine whether the apparent change of position was

the product of intelligence and understanding or of ignor-

ance or confusion.” 392 F.2d at 853. This Detective Leam-

ing clearly did not do.

Except for the fact that the absence of the defendant’s

attorney in Nielson apparently was voluntary on the defen-

dant’s part, while the absence of Petitioner’s attorney in

this case was not, Nielson clearly applies to this case.

In the language of Miranda, Petitioner was not afforded

an “opportunity to exercise these rights .. . throughout

the interrogation.” At the very least, after Petitioner’s

first incriminating statements about the victim's clothing

and then about the location of the body, Detective Leaming

should have repeated the Miranda warnings, or otherwise

made an effort to insure that Petitioner understood his

rights, before continuing his questioning. And this would

have been so even if Detective Leaming had not already

preceded these statements with constitutionally improper

interrogation.

The case of Mathies v. United States, 374 F.2d 312

(D.C. Cir. 1967), also has some clear implications for this

case. In Mathies, the defendant, with the approval of

counsel, had executed an affidavit which exonerated a

A20

prisoner named Swann by incriminating the defendant.

When the police were informed by Swann of this affidavit,

they arranged for a confrontation involving Swann, the

defendant, and the police. The defendant’s counsel was

not informed of the meeting; but the defendant was in-

formed of his rights. At this confrontation, the defendant

acknowledged the validity of the affidavit and reaffirmed

his involvement in the crime. Although the Court of

Appeals held that the defendant had not been prejudiced

by the introduction of the affidavit, since it was not the

product of police misconduct and could have been authenti-

cated at trial without evidence of the defendant’s later

acknowledgement, Chief Justice (then Circuit Judge)

Burger’s opinion stated unequivocally that it was improper

for the police to interview the defendant in the absence

of notice to his counsel, and noted that “|t]he prospective

application of Miranda ... plainly will require that such

interviews can be conducted only after counsel has been

given an opportunity to be present.” 374 F.2d at 315 (n. 3).

The record in this case clearly shows that Petitioner's

attorneys, Mr. McKnight and Mr. Kelly, not only were

not “given an opportunity to be present,”’ but were purpose-

fully prevented from being present.

As the Tenth Circuit has held in United States v.

Thomas, 474 F.2d 110, 112 (1973), cert. denied, 412 US.

932 (1973):

[o]nce a criminal defendant has either retained an

attorney or had an attorney appointed for him by

the Court any statement obtained by interview from

such defendant may not be offered in evidence for

any purpose unless the accused’s attorney was given

a reasonable opportunity to be present.

See, United States v. Durham, 475 F.2d 208 (7th Cir.

1973).

A2l

V

The preceding analysis has not conflicted directly with

that of the state trial court or the Supreme Court of

Iowa—largely because it has ignored for the most part

the issues on which these courts decided this case against

Petitioner: waiver. The state trial judge, following a

hearing on a motion to suppress, found “as a fact that

the defendant did voluntarily give information to the of-

ficers and thus waived his right to have an attorney present

during the giving of such information.” R. at 35. The

trial court’s conclusion was based on “the time element

involved in the trip, the general circumstances of it, and

more importantly the absence on the Defendant’s part

of any assertion of his right or desire not to give informa-

tion absent the presence of his attorney... .” R. at 35 (em-

phasis added). After an independent review of the issue,

and of the record, the Supreme Court of Iowa supported

and upheld these conclusions. State v. Williams, 182 N.W.

2d 396, 402 (Iowa 1969).

As it relates to the issue of waiver and whether there

was a waiver, the Court has previously determined under

the factual situation in this case that there could be no

effective waiver, given the Sixth Amendment violation

inherent in the breaking of the agreement not to interro-

gate and the other efforts by Detective Leaming to inter-

rogate Petitioner in the absence of counsel. However,

since waiver is relevant at least to the Miranda violation,

and since the resolution of the issue of waiver in any

event must be favorable to Petitioner, the Court now will

proceed to an analysis of waiver in this case.

Under 28 U.S.C. § 2254(d), a “determination after

a hearing on the merits of a factual issue, made by a

State court of competent jurisdiction” generally is given

a presumption of correctness in a federal habeas corpus

A22

action. Consistent with this, this Court has given great

deference to the findings of fact made by the trial judge

in this case, and as has been noted previously, none of

the findings of fact outlined in Section II, supra, conflicts

with findings of fact made by that state court. However,

on this record, this Court must agree with the dissenting

opinion in State v. Williams, supra—and therefore disagree

with the conclusion of the trial judge and of the Iowa

Supreme Court majority that Petitioner waived his Fifth

and Sixth Amendment rights during the trip from Daven-

port to Des Moines on December 26, 1968.

This failure to adopt the state courts’ conclusions on

the issue of waiver is based on three separate, though re-

lated, considerations. First, 28 U.S.C. §2254 speaks of a

presumption in favor of the state court’s findings of fact;

the issue of waiver, however, is one of law. The United

States Supreme Court recently has recognized this very

distinction in Neil v. Biggers, 409 U.S. 188 (1972). In re-

versing the decisions of both the United States District

Court and the Court of Appeals, the majority in Biggers

answered the dissenters’ criticism that they had not fol-

lowed the lower courts’ findings of fact by holding that

where the issue is one not purely of fact, but of the con-

stitutional significance of these facts, the usual presump-

tion in favor of the lower courts’ findings does not apply.

In the instant case, the issue—waiver—similarly is one of

the constitutional significance of essentially undisputed

facts, and hence there is no presumption of validity of the

state courts’ conclusions on this issue.

Second, it appears clear from the state courts’ articu-

lation of their reasons for finding waiver that they applied

the wrong constitutional standards in making that finding.

The Court in Miranda explicitly held that:

A23

If the interrogation continues without the presence of

an attorney and a statement is taken, a heavy burden

rests on the Government to demonstrate that the de-

fendant knowingly and intelligently waived his priv-

ilege against self-incrimination and his right to re-

tained or appointed counsel... .

An express statement that the individual is willing to

make a statement and does not want an attorney fol-

lowed closed by a statement could constitute a waiver.

But a valid waiver will not be presumed simply from

the silence of the accused after warnings are given or

simply from the fact that a confession was in fact even-

tually obtained. 384 U.S. 436 (emphasis added).

This strict standard of waiver in cases involving custodial

interrogation, such as Miranda and Escobedo, recently has

been reaffirmed by the United States Supreme Court in

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

In this case, there is nothing in the record to indicate

that Petitioner waived his Fifth and Sixth Amendment

rights ¢xcept the fact that statements eventually were ob-

tained. The heavy emphasis by the trial court on the

“absence . . . of any assertion of his right or desire not

to give information absent the presence of his attorney”

conflicts directly with the Supreme Court’s holding that

“a valid waiver will not be presumed simply from the

silence of the accused after warnings are given.” In short,

Miranda makes it clear that it is the government which

bears a heavy burden of affirmatively demanding his

rights, even after the appropriate warnings have been

given—but that is the burden which explicitly was placed

on Petitioner by the state courts.

A24

Finally, under the proper standards for determining

waiver, there simply is no evidence to support a waiver.*

As noted in the preceding paragraph, there is no affirma-

tive indication, other than the challenged statements them-

selves, that Petitioner did waive his rights. Moreover, the

state courts’ emphasis on the absence of a demand for

counsel was not only legally inappropriate, but factually

unsupportable as well, since Detective Leaming himself

testified that Petitioner, on several occasions during the

trip, indicated that he would talk after he saw Mr. Mc-

Knight. Both these statements and Mr. Kelly’s statement

to Detective Leaming that Petitioner would talk only after

seeing Mr. McKnight in Des Moines certainly were asser-

tions of Petitioner’s “right or desire not to give information

absent the presence of his attorney ... .” Moreover, the

statements were obtained only after Detective Leaming’s

use of psychology on a person whom he knew to be deeply

religious and an escapee from a mental hospital—with the

specific intent to elicit incriminating statements. In the

face of this evidence, the State has produced no affirma-

tive evidence whatsoever to support its claim of waiver,

and, a fortiori, it cannot be said that the State has met its

“heavy burden” of showing a knowing and intelligent

waiver of Fifth and Sixth Amendment rights.

This conclusion would be unavoidable even absent the

initial agreement between Mr. McKnight and the police

that Petitioner would not be questioned until he arrived

in Des Moines. But that agreement, if it did not vitiate

entirely the issue of waiver, clearly added to the already

heavy burden of the State on that issue, and makes even

more plain the failure of the State to demonstrate a waiver.

5. Thus, even if waiver were a question of fact, thi ,

; , this Court’s

conclusion, would be that the state courts’ determination of

waiver “is not fairly supported by th ”

A25

VI

One further argument of the Petitioner remains; that

his confession was given involuntarily. Although the pre-

ceding findings of fact and conclusions of law already dis-

pose of the case in Petitioner’s favor, this Court believes it

appropriate to deal also with this “voluntariness” claim.

Preliminarily, it is useful to note that the state courts

considered the issues of waiver and of voluntariness as a

single issue to be decided on the “totality of the circum-

stances.”® However, the Supreme Court recently has held

that these are issues which, though related, are distinct.

See, Schneckloth v. Bustamonte, 412 U.S, 218 (1973).?

In considering the issue of voluntariness solely on the

state court record, and without further evidentiary hear-

ings, this Court of course must, under 28 U.S.C. § 2254(d),

“exercise caution .. . from determining factual questions

anew... .”’ Iverson v. North Dakota, 480 F.2d 414, 426

(8th Cir. 1973). At the same time, the Iverson holding

does not conflict with the well established rule that a court

in reviewing a challenge to the voluntariness of a confes-

sion is to “examine the entire record and make an inde-

pendent determination of the ultimate issue of voluntari-

ness”—even in a habeas corpus case. Davis v. North

Carolina, 384 U.S. 737, 741-42 (1966). The Court of Ap-

peals in Iverson simply held that on the record before the

District Court in that case, it could not be held as a matter

6. [T]he Defendant did voluntarily give information to the

officers and thus waived his right to have an attorney present”;

“he voluntarily waived such right... .” R. at 35.

7. Briefly, the issue with regard to “waiver” is whether the

accused understood his rights and intelligently and voluntarily

waived them, while the issue with regard to “voluntariness” is

whether the accused’s actions were the product of the free ex-

ercise of his will. The accused’s knowledge of his rights is a

factor to be considered in the totality of the circumstances sur-

rounding voluntariness, but is not dispositive of the issue.

Schneckloth v. Bustamonte, supra.

A26

of law that the challenged confession was involuntary—

and then remanded for further fact-finding proceedings.

Iverson v. North Dakota, supra, at 426, 427.

It is the prosecution which bears the burden of demon-

strating voluntariness, at least by a preponderance of the

evidence. Lego v. Twomey, 404 U.S. 477 ( 1972). Al-

though this Court does not disagree with any of the find-

ings of fact made by the state trial court, based on an

independent examination of the record which has ac-

cepted the State’s version of contested facts, it cannot

agree with the state courts that the State met its burden

of showing that Petitioner’s statements were voluntarily

given. In reaching this conclusion, the Court has given

pa.ticular attention to Spano v. New York, 360 US. 315,

79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). In Spano, the de-

fendant, after some eight hours of questioning, gave a con-

fession, the confession was admitted at his trial, and the

defendant was convicted. At the time of the questioning,

the defendant had surrendered himself and had retained

counsel. Following the instructions of his attorney, the

defendant at first refused to answer questions, and asked

to talk to his attorney; this request was denied. Eventually,

a fledgling police officer named Bruno, a close friend of

the defendant, was induced to tell the defendant (falsely )

that his job would be placed in jeopardy if the defendant

did not talk. The defendant then gave a statement. In

reversing the conviction on the ground that the confession

was involuntary, the Supreme Court emphasized three

main factors: (1) the police officers’ denial of the de-

fendant’s requests to talk to his attorney; (2) the psy-

chological approach characterized by “sympathy falsely

aroused” by Bruno; and (3) the intent of the police to

get a confession from the defendant. 360 U.S. at 323-24.

Factors closely analogous to these are present in the in-

stant case.

. wlll

A27

First, Detective Leaming, although he did not deny

during the automobile trip a direct request from Petitioner

for his attorney, ignored his agreement with Mr. McKnight

that Petitioner would not be questioned, refused Mr.

Kelly permission to ride along in the car to Des Moines,

and ignored Petitioner’s several statements that he would

talk after he saw his attorney. Second, Detective Leam-

ing, with full knowledge of Petitioner’s religious nature

and history of mental illness, used a psychological ap-

proach which purposefully played on religion and on Pe-

titioner’s sympathies. Moreover, Detective Leaming ad-

mittedly was less than honest with Petitioner concern-

ing his supposed knowledge that the victim’s body was

near Mitchellville. And third, Detective Leaming himself

admitted that it was his specific purpose in talking to Pe-

titioner to obtain incriminating statements from Petitioner

before he had a chance to reach Mr. McKnight. Added to

these factors is the coercive atmosphere which is inherent

in a counselless automobile ride with police officers.

Against these factors strongly pointing to involuntari-

ness, there is very little evidence to sustain the State’s bur-

den of showing voluntariness. Miranda warnings were

given; but they were given some time before the incrim-

inating statements were obtained, and they were followed

by several indications that Petitioner wished to talk only

in the presence of his attorney. The state courts also placed

some emphasis on the timing of the statements, and this is

one area in which the state court record is not quite as

clear as it might be. Nevertheless, Detective Leaming’s

own testimony shows that even before he spoke to Peti-

tioner about the weather, the desirability of a “good Chris-

tian burial’ for the victim, and his “knowledge” that the

body was near Mitchellville, he and Petitioner discussed

a large number of topics, including Detective Leaming’s

background and attitudes, Petitioner’s friends, Petitioner’s

A28

Reverend, a Mr. Searcy, whether the police had checked

for fingerprints in Petitioner’s room at the YMCA, religion,

the intelligence of other people, police procedures, organiz-

ing youth groups, singing, playing a piano, playing an or-

gan, “and this sort of thing.” R. at 119. Whatever treat-

ment these topics were given, discussion of all of them

must have consumed a considerable amount of time. Fol-

lowing Detective Leaming’s lengthy and purposeful plea

about locating the body for burial purposes and his ad-

mittedly false statement about knowing that the body was

near Mitchellville, Detective Leaming told Petitioner not

to answer then, but to “think about it” as they were riding

down the road. Finally, after the initial stop at Grinnell,

but before Petitioner’s statements about the location of the

body, there was further conversation about “people and

religion and intelligence and friends of his, and what peo-

ple’s opinion (sic) was of him and so forth.” R. at 123.

As noted above, the trial record is not as clear as it

might be with regard to the timing of Petitioner’s incrim-

inating statements vis-a-vis the conversations between De-

tective Leaming and Petitioner. However, the lack of per-

fect clarity is not sufficient to preclude a finding of in-

voluntariness here. For one thing, it was the State’s >ur-

den to show voluntariness, and therefore the State’s bur-

den to make timing clear if it was important. More sig-

nificantly, it seems clear from Detective Leaming’s own

testimony about the amount of conversation which took

place that Petitioner's statements coulc not have been

made after too long a lull in that conversation. And most

importantly, Detective Leaming’s approach specifically was

not designed to elicit an immediate response to a direct

question. Rather, Detective Leaming asked Petitioner to

wait before he answered and to “think it over,” and in a

very real sense the fact that Petitioner did so would only

indicate the success of the interrogator’s tactics. Finally,

A29

in light of the interrogator’s approach, both with regard

to the “Christian burial” and the “knowledge” that the

body was near Mitchellville, it is not surprising that it was

at a spot relatively near Mitchellville that Petitioner made

his statements concerning the location of the body.

In short, there are many factors pointing strongly to

involuntariness, and the State simply failed to meet its

burden of showing voluntariness.

VII

The holding of this Court is that all of the incriminat-

ing statements elicited from Petitioner during the Decem-

ber 26, 1968, automobile trip from Davenport to Des Moines

were obtained in violation of Petitioner’s Fifth and Sixth

Amendment rights, and hence evidence of these statements

should not have been admitted at Petitioner’s trial. Under

Chapman v. California, 386 U.S. 18 (1967), trial court er-

rors of constitutional dimension necessitate reversal of a

criminal conviction unless it can be shown beyond a rea-

sonable doubt that the error did not prejudice the de-

fendant. Here, the prejudice is obvious, and hence Peti-

tioner’s requested relief should be granted.

This Court’s decision does not touch upon the issue of

what evidence, if any, beyond the incriminating statements

themselves must be excluded as “fruit of the poisonous

tree.” Cf., Wong Sun v. United States, 371 U.S. 471 (1963).

Neither party to this action has raised this issue, and since

the issue is neither necessary to a judgment of reversal nor

an independent alternative ground for reaching that judg-

ment, it will be left as a point for decision by the appropri-

ate state court in the event that there is a re-trial of this

case. However, insofar as the matter of the admission of

certain portions of the evidence may be concerned which is

A30

“fruit of the poisonous tree,” the Court cites Killough v.

United States, 336 F.2d 929, 934 (D.C. D.C. 1964).

The granting of a writ of habeas corpus, particularly

by a federal court, is always a serious matter; and it is

made even more serious in this case by the apparent clar-

ity with which the evidence in the record connects Peti-

tioner, at least in some manner, with an especially repre-

hensible crime. At the same time, the very foundation of

our social and political order is the rule of law, and while

one may sympathize with Detective Leaming’s desire to

locate the victim’s body, his actions clearly and grossly

violated the fundamental guarantees which our Constitu-

tion and laws have set up to govern the conduct of those

engaged in law enforcement activities. Although both his

general approach and his failure to observe the dictates of

the Miranda case would themselves necessitate reversal of

the conviction in this case, Detective Leaming’s breaking

of the agreement with Mr. McKnight and his purposeful

and deliberate efforts to isolate Petitioner from his attor-

neys in order to obtain information are of particular con-

cern to this Court. When the police and defendant’s coun-

sel have agreed that there will be no questioning in the

latter’s absence, when the defendant has been told by

counsel not to say anything in his absence, and when the

defendant repeatedly has stated his desire to remain silent

until he sees his lawyer, the State must show much more

than the fact that statements eventually were obtained in

order to justify questioning of the defendant in the face

of this assertion and reassertions of his constitutional right.

To hold otherwise would not only fly in the face of legal

precedent; it would also, as the dissent in State v. Williams,

supra, pointed out, “discourage reasonable and sound ap-

proaches to criminal practice” by defense counsel. Indeed,

to allow into evidence statements obtained as were the

statements involved in this case might make it unethical

A3l

for defense counsel to advise a client to surrender in his

absence, or to ever leave his client’s side after arrest. If

the right to counsel is to be preserved in any meaningful

sense, agreements between counsel and the police involv-

ing matters such as interrogation must be lived up to.

Cf., Santobello v. New York, 404 U.S. 257 (1971).

In addition to the constitutional prohibition against

interrogation by Detective Leaming under these circum-

stances, the Court believes there are ethical considera-

tions in the elicitation and use of the confession of the

Petitioner obtained outside the presence of Petitioner’s

attorney and without the attorney’s consent and advice to

his client and after Petitioner had counsel—appointed or

retained. United States v. Thomas, supra, 474 F.2d at 111-

112.

The Court has spent a great amount of time reviewing

the record of the State District Court and the Iowa Su-

preme Court and finds itself in full agreement with the ably

written dissent of the Iowa Supreme Court in State v.

Williams, supra. This Court is ever mindful of the emo-

tional impact of such a decision as has been rendered by

this Court today. This Court, however, even in a case in-

volving a heinous crime with overwhelming evidence of

a criminal defendant’s guilt must adhere to the tenets of

a constitutional approach to criminal procedure which has

its ultimate goal a fair trial sustaining the rule of law.

This Court today does say that the Petitioner shall be

either afforded a new trial or the State must appeal to test

the Court’s ruling or a wriv will issue.

Accordingly, it is ordered that the Petition for Writ

of Habeas Corpus is sustained.

It is further ordered that the writ for release from

custody shall not issue for the period of sixty (60) days

A32

pending an appeal or the pursuit of a new trial by the

State of Iowa. In the event of the pursuit of new trial

without appeal, the writ shall not issue until judgment is

made in the last court in which it is finally submitted.

It is further ordered that in the event an appeai is

filed by the State of Iowa within sixty (60) days of this

Order, the issuance of the writ shall be stayed pending the

outcome of that appeal provided the appeal is diligently

prosecuted by the State of Iowa.

CERTIFICATE OF SERVICE

I, Richard N. Winders, Assistant Attorney General

for the State of lowa, hereby certify that on this 1lth day

of April, 1975, three (3) copies of the Supplemental Ap-

pendix were mailed, correct postage prepaid, to:

Mr. Robert Bartels

College of Law

University of Iowa

Iowa City, lowa 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