Petition — Fairman v. White

81-2340

No.

In the Supreme Court of the Gini

OCTOBER TERM, 1981

Frep FINnKB&INEeR, PETITIONER,

Vs.

Eutuges Wuite, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Tyrone C. FAHNER

Attorney General

State of Illinois

KATHLEEN M. Lien

Assistant Attorney General

188 West Randolph Street

Suite 2700

Chicago, Illinois 60601

Attorneys for Petitioner

Printed by the Authornty of the State of [Minow — 6-18-82

QUESTIONS PRESENTED

I. Whether Edwards v. Arizona mandates a finding that

there has not been a valid waiver of a previous request for

counsel during custodial interrogation in every case in which

the accused did not initiate the further communication with

the police, regardless of the other facts and circumstances of

the case?

II. Whether the rationale of Stone v. Powell should be ex-

tended to bar federal habeas corpus relief for claims seeking to

exclude confessions in cases in which there is no question of

the innocence of the accused or the unreliability of the confes-

sion?

—

TABLE OF CONTENTS

QRUES TOONS PRESENTED .... 2... cc cccccccscces i

pS ee ill

ne vn cd wndscany cou saguaneed 1

tn is cpepbectdccattecseeset esecnd 3

CONSTITUTIONAL PROVISIONS ............. 3

STATEMENT OF THE CASE ................+: 4

REASONS FOR GRANTING CERTIORARI...... 6

I. CERTIORARI SHOULD BE GRANTED TO

CLARIFY THE WAIVER STANDARD

ANNUNCIATED IN EDWARDS v. ARIZONA

BECAUSE EDWARDS IS UNCLEAR AND

ITS AMBIGUITY IS RESULTING IN UN-

EQUAL TREATMENT OF SIMILARLY SIT-

UATED PERSONS DUE TO CONTRA-

DICTORY INTERPRETATIONS BY

ee te og, PPP Terre rrr Tre 6

II. CERTIORARI SHOULD BE GRANTED TO

CLARIFY WHETHER THE RATIONALE

OF STONE vo. POWELL SHOULD BE EX-

TENDED TO BAR FEDERAL HABEAS

CORPUS RELIEF FOR CLAIMS SEEKING

TO EXCLUDE CONFESSIONS IN CASES IN

WHICH THERE IS NO QUESTION OF THE

INNOCENCE OF THE ACCUSED OR THE

UNRELIABILITY OF THECONFESSION .._ 10

TABLE OF AUTHORITIES

PAGE

Brewer v. Williams, 430 US. 387 (1977) ....... 8, 12

Brown v. Allen, 344 U.S. 443(1953) .......... 8, 12

Edwards v. Arizona, 451 U.S. 477 (1981) ....... 2, 3,6, 7,8

Estelle v. Smith, 451 U.S. 454(1981) .......... 10

Fare v. Michael C. , 442 U.S. 707 (1979) ........

Faretta v. California, 422 U.S. 806(1975)....... 7

johnson v. Virginia, 221 Va. 736, 273 S.E.2d 784,

cert. denied, U.S. __, 102 S.Ct. 422 (1981) . 7

Johnson v. Zerbst, 304 U.S. 458 (1938) ......... 2,6

Leuschner v. Maryland, 49 Md.App. 490, 443

A.2d 1195, cert. denied, _ U.S. ,(1981) ... 7

Malloy v. Hogan, 378 U.S. 1(1964) ........... 10

Michigan v. Mosley, 423 U.S. 96(1975) ........ 7

Miranda v. Arizona, 384 U.S. 436 (1966) ....... 7,8

North Carolina v. Butler, 441 U.S. 369(1979).... 8

People v. James, 100 Ill. App.3d 986, 427 N.E.2d

i i és ip obec wads bh65%-0 7

People v. Wiute. 61 Tll.2d 288, 335 N.E.2d 457

(1975), cert. denied, 424 U.S. 970(1976) ..... 2

People v. White, 22 Ill.App.3d 180, 317 N.E.2d

i dS os cewbs cen sbonnes 2

People v. White, 10 Ill._App.3d 914, 295 N.E.2d

ct. anne este ceeginens i

Rosev. Mitchell, 443 U.S. 545(1979).......... 12

Schneckloth v. Bustamonte, 412 U.S. 218(1973) .. 10, 12, 19

Stone v. Powell, 428 U.S. 465 (1976)

iv

United States v. Downing, 665 F.2d 404 (1st Cir.

in whivaddes ccs svexcetatosmeelbe?

NE ious, ccd eee Hbgaabao ail

United States ex rel. Riley v. Franzen, 653 F.2d

1958 (7th Cir. 1981) .................0.

Wainwright v. Sykes, 433 U.S. 72(1977) .......

White v. Finkbeiner, U.S. __, 101 S.Ct. 3000

Rn on UN i. uecus akcuarinates

White v. Finkbeiner, No. 79-1563 (7th Cir.

MED <7-e'c%s oo pendbberheeves es

White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979)

White v. Finkbeiner, 570 F.2d 194 (7th Cir. 1978)

No.

In the Supreme Court of the Gnited States

OCTOBER TERM, 1981

Frep FINKBEINER, PETITIONER,

vs.

Eutves Wuite, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

Respondent, Eutues White, was convicted of murder by a

jury on October 8, 1969 in the Circuit Court of St. Clair

County, Illinois.

On direct appeal, the Appellate Court of Illinois remanded

White’s case for a hearing on the admissibility of his confes-

sion. People v. White, 10 Ill.App.3d 914, 295 N.E.2d 300 (5th

Dist. 1972). The trial court held the hearing, found the confes-

sion voluntary and admissible, and entered a new j tof

conviction on July 27, 1973. The Appellate affirmed

the judgment, People v. White, 22 Ill.App.3d 180, 317 N.E.2d

323 (5th Dist. 1974), as did the Illinois Supreme Court, People

v. White, 61 [ll.2d 288, 335 N.E.2d 457 (1975). Certiorari was

denied, White v. Illinois, 424 U.S. 970 (1976).

Subsequently, White filed a petition for a writ of habeas

corpus, claiming that his conviction had been obtained by the

use of a coerced confession in violation of the Fifth and Sixth

Amendments. The United States District Court for the

Southern District of Illinois denied the petition. On appeal,

the United States Court of Appeals for the Seventh Circuit

reversed and remanded for an evidentiary hearing to deter-

mine if White requested counsel while in custody, if White

waived the request for counsel, if the police officers acted in

good faith in obtaining White's confession, and if the reason-

ing of Stone v. Powell, 428 U.S. 465 (1976), precluded federal

habeas corpus relief. White v. Finkbeiner, 570 F.2d 194 (7th Cir.

1978}. The evidentiary hearing was held, the District Court

found that White made no clear or unequivocal request for

counsel, and the petition was again denied.

On the second appeal to the United States Court of Appeals

for the Seventh Circuit, the Court of Appeals held that White

had requested counsel, but that there was no per se rule pre-

venting the waiver of that request for counsel, and that White

did waive his request for counsel based on the waiver standard

in Johnson v. Zerbst, 304 U.S. 458 (1938). White vo. Finkbeiner,

611 F.2d 186 (7th Cir. 1979). A petition for rehearing was

ther consideration in light of Edwards ». Arizona, 451 U.S. 477

(1981). White v. Finkbeiner, _ U.S. —_, 101 S.Ct. 3000 (1981).

On the third consideration of the case by the United States

Court of Appeals for the Seventh Circuit, the Court of Ap-

peals reversed the judgment of conviction with instructions to

issue the writ and order White's release. Specifically, the

—

™

Court of Appeals found that ‘‘ Edwards completely undermines

our holding in White I] and behooves us to reverse’ and that

extending the rationale of Stone to bar federal habeas relief is a

**matter for the Supreme Court’’. White v. Finkbeiner, No.

79-1563 (7th Cir. Mar. 26, 1982). This petition seeks review

of the White II] decision of the United States Court of Appeals

for the Seventh Circuit rendered in light of Edwards v. Anzona,

451 U.S. 471 (1981).

JURISDICTION

The judgment of the United States Court of Appeals for the

Seventh Circuit was entered on March 26, 1982. No rehear-

ing was sought. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1). Federal jurisdiction was originally

invoked under 28 U.S.C. §2241.

CONSTITUTIONAL PROVISIONS

Amendment V of the United States Constitution

Amendment VI of the United States Constitution

In all criminal prosecutions, the accused shall enjoy

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

tial jury of the State and district wherein the crime

shall have been committed, which district shall have

been previously ascertained by law, and to be in-

formed of the nature and cause of the accusations; to

be confronted with the witnesses against him; to

have compulsory process for obtaining Witnesses in

his favor, and to have the Assistance of Counsel for

his defense.

STATEMENT OF THE CASE

Or. November 27, 1968, Bruce Reinheimer was abducted,

robbed and murdered. (T24) On May 24, 1969, Respondent,

Eutues White, was arrested for a crime unrelated to the

Reinheimer murder, and he was taken to the East St. Louis

Police Station. (R24) The facts directly bearing on whether

White requested and subsequently waived assistance of

counsel occurred while he was in custody on May 24, May 25

and May 26, 1969.

On May 24, 1969, White was taken from his cell to see

Captain Johnson. The testimony of both Captain Johnson

and White established that the meeting lasted only 2 few

minutes, that the purpose of the meeting was to ascertain if

Captain Johnson knew White, that no interrogation of White

by Captain Johnson occurred, and that White was subse-

quently returned to his cell. (S11-12; RR27-28).

Captain Johnson was not called as a witness at the trial in

1969. At the suppression hearing in 1973, Captain Johnson

stated that White ‘‘didn't want to talk .__ he would rather see

a lawyer’’ (RR2¢) Captain Johnson clearly indicated that

White did not want to talk to him and that his right to remain

silent was understood and honored. (RR24, 31-32) Captain

Johnson also clearly indicated that White was never refused

the opportunity to call an attorney or to have one appointed.

(RR28) At the habeas evidentiary hearing in 1979, Captain

Johnson testified that his testimony at the suppression hearing

in 1973 was true and correct, but that he no longer had any in-

dependent or refreshed recollection of the meeting. (S24)

White was not asked specifically about his conversation

with Captain Johnson at the trial in 1969. White did testify

that he did not remember events during his confinement. He

stated that he did not remember being questioned, or even be-

ing in jail during the month of May. (T142) At the suppres-

sion hearing in 1973, White declined to testify after Captain

Johnson was called as a witness and after Captain Johnson

was recalled as a witness (R R30, 35) At the habeas evidentiary

hearing in 1979, White testified: ‘‘I was down here to see a

lawyer’’, ‘‘I want to see an attorney’’, and ‘‘I’d rather see an

attorney’’. (S12, 18, 19) When specifically asked by the court

if there was some particular attorney he wanted to talk to or

just any attorney, White replied, ‘“Well, I didn’t want to talk

to him ( Johnson)’’. (S18)

On May 25, 1969, White was questioned by Offficer

O'Sullivan and Officer Stanis. Before questioning, White was

advised of, appeared to understand, and waived his /firanda

rights. (S37-38; RR7-8) He then confessed to crimes not rele-

vant to the present petition.

On May 26, 1969, White confessed to the Reinheimer

murder, and he reenacted the crume. The repeated testimony

of Officers O'Sullivan and Stanis concerning this confession

was that White was adv:sed of his constitutional rights accord-

ing to the Miranda sti.ndards, that he understood them, and

that he waived them. (RR3-4; T51; RR11, 19-20; 840, 47)

When specifically questioned as to White's response when

told he had the righ’ to have an attorney present, Officers

O'Sullivan and Stanis both » ated, ‘‘He said he didn't need

one’’. (R13; S49; T71) The confession itself is signed on both

pages and contains a signed waiver of the Miranda rights. (Ex-

hibits 1 and 2 following T55) Also, the uncontradicted

testimony of both officers was that no coercion or inducement

was used to obtain the confession. (R5; T52)

REASONS FOR GRANTING CERTIORARI

I. CERTIORARI SHOULD BE GRANTED

TO CLARIFY THE WAIVER STANDARD

ANNUNCIATED IN EDWARDS v.

ARIZONA BECAUSE EDWARDS IS

UNCLEAR AND ITS AMBIGUITY IS

RESULTING IN UNEQUAL TREAT-

MENT OF SIMILARLY SITUATED PER-

SONS DUE TO CONTRADICTORY IN-

TERPRETATIONS BY LOWER COURTS

In Edwards v. Arizona, 451 U.S. 477 (1981), this Court

addressed the issue of the correct standard required for finding

a valid waiver of a previous request for counsel during

custodial interrogation. The cases decided subsequent to

Edwards demonstrate confusion as to the legal standard being

annunciated in that decisior . The confusion results in two

interpretations. Some ‘ower courts interpret the standard as

annunciated in Edwards to be the traditional doctrine of

Johnson v. Zerbst, 34 U.S. 458 (1938), that a waiver of counsel

must be a knowing and intelligent relynquishment or aban-

donment of a known nght or privilege, which depends in each

case upon the particular facts and circumstances surrounding

ere

of the accused. Leuschner v. Maryland, 23 Md.App. 490, 433

A.2d 1195 (1981); Johnson v. Virginia, 221 Va. 736, 273 S.E.2d

784, cert. denied, 102 S.Ct. 422 (1981); United States v. Kiendra,

663 F.2d 349 (1st Cir. 1981). Other lower courts interpret the

standard as annunciated in Edwards to add to the traditional

doctrine of waiver the absolute requirement that the accused

must have initiated any post-request communications with

the police in order for the waiver to be valid. White v. Fink-

beiner, No. 79-1563 (7th Cir. Mar. 26, 1982); United States ex

rel. Riley v. Franzen, 653 F.2d 1153 (7th Cir. 1981); United States

v. Downing, 665 F.2d 404 (1st Cir. 1981); People v. James, 402

N.E. 2d 936 (4th Dist. 1981), 100 Ill. App. 3d 986 427 N.E.

2d 606 (4th Dist.). This ambiguity inherent in Edwards has

resulted in inconsistent opinions and unequal treatment of ac-

cuseds. At least one court has articulaied the confusion by

reiterating the opinion of two Justices of this Court that they

were “‘not sure what Edwards means’’ and that there were

“*two ways of looking at the light cast by Edwards’’. Leuschner

v. Maryland, 49 Md.App. 490, 433 A.2d 1195 at i199, citing

Edwards v. Arizona, 451,U.S. 477, 101 S.Ct. 1880 at 1887

(1981) (Powell, J., concurring).

Guidance should be given to lower courts to view Edwards

as applying the Johnson waiver standard. It has long been

established that the waiver of the protection of the Miranda

rule must be a knowing and intelligent one. Wainwright ov.

Sykes, 433 U.S. 72 at 108-109 (1977) (Brennan, J., dissent-

ing). Miranda itself prescribes the johnson test as the proper

standard for waiver of Fifth and Sixth Amendment rights.

Miranda v. Arizona, 384 U.S. 436 at 475 (1966). In keeping

with the dictates of Miranda, this Court has consistently stated

that the Johnson test 1s the correct waiver standard for protect -

ing Fifth and Sixth Amendment rights. Faretta v. Calforma,

422 U.S. 806 (1975); Adschigan v. Mosley, 423 U.8. 96 (1975);

Brewer v. Williams, 430 U.S. 387 (1977); Fare v. Michael C., 442

U.S. 707 (1979): North Carolina v. Butler, 441 U.S. 369 (1979).

Johnson is likewise the proper standard for determining

whether there has been a post-request waiver of counsel. The

request of an accused for an attorney is per se an invocation of

his Fifth Amendment rights. Fare v. Michael C., 442 U.S. 707

at 719 (1979). The Fifth Amendment right involved is the

privilege of the accused not to be compelled to incriminate

himself. Miranda v. Arizona, 384 U.S. 436 at 439 (1966). The

thrust of the privilege is to protect against compulsion or coer-

cion. Miranda v. Arizona, 384 U.S. 436 at 478 (1966). There is

no showing that the Johnson test has been inadequate to protect

this privilege. Since the same value is being protected, the

same standard should be used in order to insure justice by ap-

plying a logically consistent standard to all accuseds.

In applying the Johnson test, this Court has emphasized the

**totality of the circumstances’’ aspect of the waiver standard.

Fare v. Michael C., 442 U.S. 707 at 725 (1979). Even when

discussing the right to counsel at trial, this Court again em-

phasized that the question of waiver must be determined on

the ‘“‘particular facts and circumstances surrounding that

case, including the background, experience, and conduct of

the accused’’. North Carolina v. Butler, 441 U.S. 369 at 374

(1979). The question of waiver requires ‘‘application of con-

stitutional principles to the facts as found’’. Brown v. Allen, 344

U.S. 443 at 507 (1953) (Frankfurter, J., separate opinion);

Brewer v. Williams, 430 U.S. 387 at 403 (1977). It does not re-

quire ‘‘constitutionalizing’’ a single fact among the various

facts that may be relevant to determining whether there has

been a valid waiver. Edwards v. Arizona, 451 U.S. 477, 101

S.Ct. 1880 at 1888 (1981) (Powell, J., concurring).

It is inconsistent with the ‘‘totality of the circumstances’”’

evaluation to make it a necessary fact in every case that the ac-

cused must have initiated the post-request communication

: Jee

9

with the police. The court in White implicitly rejected the

totality of the circmstances test when it held that a finding

that the accused did not initiate a post-request communication

with the police must result in a finding of non-waiver. Initia-

tion is relevant, but it is only one factor. Giving undue impor-

tance to any one factor diminishes the scrutiny of the other cir-

cumstances which may be more vital in determining if there

was physical or psychological coercion.

As White demonstrates, the absence of initiation does not

always correlate with the presence of coercion and the absence

of a valid waiver. White was not an accused ‘‘such as Ed-

wards’’. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 at

1885 (1981). In its opinion prior to Edwards, the Court of Ap-

peals found that White’s ‘‘off-hand’’ request for counsel was

merely considered an invocation of the right to remain silent

and was not passed on to the investigating officers, that the

Miranda warnings were given before any questioning, that

White indicated that he understood the warnings and signed a

waiver of them, and that White made ‘‘almost an explicit

waiver’’ by replying ‘‘I don’t need a lawyer’’ when specifical-

ly asked during administration of the warnings if he wanted

counsel. White v. Finkbeiner, 611 F.2d 186 at 189 (7th Cir.

1979). The Court of Appeals gave considerable attention to

the initiation factor, but concluded that ‘‘under the particular

circumstances of this case the fact that the police initiated con-

tact with White does not prohibit showing of a waiver’’. White

v. Finkbeiner, 611 F.2d 186 at 192 (7th Cir. 1979). In applying

the Johnson test, the Court of Appeals observed that ‘‘each case

must depend on the specific facts presented to the court in the

record’’. White v. Finkbeiner, 611 F.2d 186 at 193 (7th Cir.

1979). But having found sufficient facts to conclude that

White countermanded his prior request for counsel without

any pressure from the police, the Court of Appeals still be-

lieved that Edwards dictated reversal of that decision. White v.

~ Finkbeiner, No. 79-1563 (7th Cir. Mar. 26, 1982).

10

Edwards should not be read to dictate such a result. It is not

reasonable that initiation by the accused is the sole deter-

minative fact in every case. There may be valid reasons why

the police must contact the accused, such as to inform him of

new charges. An accused may have changed his mind, even

though he did not initiate the encounter at which he indicated

that change. The Fifth Amendment privilege is fulfilled when

an accused is guaranteed the right to remain silent unless he

chooses to speak in the ‘‘unfettered exercise of his own will’.

Malloy v. Hogan, 378 U.S. 1 at 8 (1964); Estelle v. Smith, 451

U.S. 454, 101 S. Ct. 1866 at 1875 (1981).

Reading Edwards to apply a single controlling criterion is in-

ternally inconsistent with the holding in that decision that

Johnson is the correct waiver standard. It is also inconsistent

with this Court’s rejection of a ‘‘litmus-paper test’’ approach

to protecting constitutional rights. Schneckloth v. Bustamonte,

412 U.S. 218 at 230 (1973). Most importantly, the cases in the

wake of Edwards demonstrate the unequal and unjust results

produced by the application of a mechanistic, confusing stan-

dard to protection of Fifth Amendment rights.

II. CERTIORARI SHOULD BE GRANTED

TO CLARIFY WHETHER THE RA-

TIONALE OF STONE wv. POWELL

SHOULD BE EXTENDED TO BAR

FEDERAL HABEAS CORPUS RELIEF

FOR CLAIMS SEEKING TO EXCLUDE

CONFESSIONS IN CASES IN WHICH

THERE IS NO QUESTION OF THE IN-

NOCENCE OF THE ACCUSED OR THE

UNRELIABILITY OF THE CONFES-

SION

11

In Stone v. Powell, 428 U.S. 465 (1976), this Court held that

where the state has provided an opportunity for full and fair

litigation uf a Fourth Amendment claim, the Constitution

does not require that a state prisoner be granted federal

habeas corpus relief on the ground that evidence obtained in

an unconstitutional search or seizure was introduced at his

trial. The utility of the exclusionary rule was weighed against

the cost of extending collateral review. Stone v. Powell, 428

U.S. 465 at 489 (1976). It was found that application of the ex-

clusionary rule was not justified because the claim did not im-

pugn the integrity of the judicial system or challenge the

evidence as inherently unreliable. Stone v. Powell, 428 U.S. 465

at 479, 486 (1976). Since the central concern of criminal pro-

ceedings is the ultimate question of guilt or innocence and

since the exclusionary rule deflects the truth-finding process

and often frees the guilty, application was not found justified

merely to deter improper police practices. Stone v. Powell, 428

U.S. 465 at 490 (1976). Rather, indiscriminate application of

the exclusionary rule was found to generate disrespect for the

law and administration of justice. Stone v. Powell, 428 U.S. 465

at 491 (1976).

Collateral review is likewise inappropriate in cases such as

White. Like Stone, such cases present claims in which there has

been a full and fair opportunity to litigate the claim in state

courts at trial and on appeal and in which there is no colorable

claim of innocence or of the unreliability of the evidence. In

White, the confession was considered once by the Illinois

Supreme Court, twice by the Illinois Appellate Court for the

Fifth District, and three times by the trial court. The state

courts were competent to determine if the confession was the

product of coercion. The state courts are also guardians of the

people’s constitutional rights and there is no reason why they

should not be the ‘‘main event’’, rather than a “‘tryout on the

road’’ for a later federal habeas determination. Wainwright v.

Sykes, 433 U.S. 72 at 90, 106 (1977).

12

In White, the claim was not that the confession was coerced

in the substantive sense of being wrung from an unwilling

suspect by threats, tricks or inducements. The confession was

not unreliable as being obtained by the use of methods which

would make an innocent person confess. There was no claim

that White did not commit the murder. In fact, White’s

reenactment of the crime following his confession substan-

tiated the validity of the confession. Instead, the claim was

that there was a technical violation because the police did not

recognize or treat an off-hand statement as a request for

counsel. The record established that it was the practice of the

police department involved to provide an attorney upon re-

quest, but that the police understood and honored the state-

ment as a request to remain silent. There would not be even a

deterrent effect on police practices in this case as any violation

was merely inadvertent. A distinction should be made be-

- tween flagrant violations by the police, on the one hand, and

technical, trivial, or inadvertent violations, on the other hand.

Brewer v. Williams, 430 U.S. 387 at 414 (1977) (Powell, J.,

concurring, footnote 2). Also, the exclusionary rule generally

has been found to be of minimal deterrent value and not

enhanced by the possibility that a conviction might be over-

turned in collateral proceedings occurring years later. Rose v.

Mitchell, 443 U.S. 545, 99 S.Ct. 2993 at 3003 (1979).

The exclusionary rule is a judicially created remedy. Stone v.

Powell, 428 U.S. 465 at 482 (1976). Balanced against its

employment is the loss of various other societal values.

Schneckloth v. Bustamonte, 412 U.S. 218 at 259 (1973) (Powell,

J., concurring). Society has an interest in preventing a wind-

fall for the guilty, preventing meritorious claims from being

prejudiced in a flood of worthless ones, and preventing

violence and maintaining the general security. Stone v. Powell,

428 U.S. 465 at 490 (1976); Schneckloth v. Bustamonte, 412 U.S.

218 at 274 (1973) (Powell, J., concurring); Brown v. Allen, 344

U.S. 443 at 512 (1953) (Frankfurter, J., separate opinion).

13

Society also has an interest in preserving suspect questioning i

as an instrument of law enforcement, preserving public faith

in the judiciary and the legal system, preserving judicial

resources and respect for the finality of judgments, and pre-

serving the balance between federal and state systems of

justice. Schneckloth v. Bustamonte, 412 U.S. 218 at 225 (1973);

Stone v. Powell, 428 U.S. 465 at 491 (1976); Schneckloth v. Busta-

monte, 412 U.S. 218 at 259 (1973) (Powell, J., concurring).

The central reason for a writ of habeas corpus is to redress

an unjust incarceration. Schneckloth v. Bustamonte, 412 U.S. 218

257-258 (1973) (Powell, J., concurring). If the exclusionary

rule is not used to protect the innocent, to exclude unreliable

evidence, or to remedy inquisitions compelling incrimination,

substance is being subordinated to form, with the result that

truth is being unnecessarily excluded from the fact-finding

process. It might better serve both the individual’s and socie-

ty’s interest for the law to convey to those who have commit-

ted a crime that they should look forward to rehabilitation and

to becoming a constructive citizen, rather than looking back

to resurrect every imaginable basis for further litigation.

Schneckloth ». Bustamonte, 412 U.S. 218 at 262 (1973) (Powell,

J., concurring).

‘

CONCLUSION

For the foregoing reasons, the petitioner requests that the

petition for writ of certiorari be granted.

Respectfully submitted,

Tyrone C. FAHNER

Attorney General

State of Illinois

KATHLEEN M. LIEN

Assistant Attorney General

188 West Randolph Street

Suite 2200

Chicago, Illinois 60601

(312) 793-6783

3a

IN THE

UNITED STATES COURT OF APPEALS

FOR 1HE SEVENTH CIRCUIT

No. 79-1563

© Evrues Wurre,

v.

Frep FInKBEINER,

Respondent-A ppellee

No. P 76-C-104—Robert D. Morgan, Judge.

On Remand from the Supreme Court of the United States

Marcu 26, 1982

Swycert, Senior Circuit_Judge, SprecHeR and Woop, Circuit

Judges.

Swycert, Senior Circuit Judge. Pursuant to an order of the

Supreme Court,' this case is before us for the third time. The

' White ». Finkbeiner, 451 U.S. 1013 (1981).

ta

court’s denial of petitioner-appellant Eutues White's applica-

tion for a writ of habeas corpus and remanded for an eviden-

tiary hearing.? On remand, the district court again denied

habeas relief, finding that White had not requested to have

counsel present during a custodial interrogation. Consequent-

ly, the district court held that the confession which White

made during the interrogation was admissible under Miranda

v. Arizona, 384 U.S. 436 (1966). In an appeal from that judg-

ment, we affirmed. However, we rejected the district court’s

determination that White had not requested counsel. Instead,

we held that although White had made such a request, he had

validly waived his right to counsel afterward.*

In its remand order, the Supreme Court directed us to

reconsider our decision in White I] in the light of Edwards v.

Arizona, 451 U.S. 477 (1981). Additionally, although we

found it unnecessary to do so previously,* we now must con-

sider respondent-appellee Finkbeiner’s contention that we

should extend the rationale of Stone v. Powell, 428 U.S. 465

(1976), to bar White from obtaining federal habeas relief on

the basis of a Miranda claim which White had a full and fair op-

portunity to litigate in the state court proceedings.°

After considering the parties’ statements submitted to this

court pursuant to Circuit Rule 19, for the reasons given

* White o. Finkbeiner, 570 F.2d 194 (7th Cir. 1978) (“* White I’).

’ White o. Finkbeiner, 611 F.2d 186 (7th Cir. 1979) (‘‘ White IT’).

* 611 F.2d at 189 n.9; 570 F.2d at 200-01.

5 Not only did White have an opportunity to litigate his Miranda claim in

the state court proceedings, in fact, he fully utilized that opportunity, as

set forth in our previous opinions. 611 F.2d at 196-99; 570 F.2d at 188.

Thus, as required by 28 U.S.C. § 2254(b), White has exhausted the

available state court remedies.

5

ws - —— ee a

|

5a

below, we reverse the district court’s judgment and remand

with instructions to issue the writ and order White’s release

unless he is retried within ninety days of the issuance of this

court’s mandate.*

Edwards completely undermines our holding in White I] and

behooves us to reverse the district court’s judgment. In Ed-

wards, after being given Miranda warnings, which he

acknowledged that he understood, the defendant stated that

he was willing to be questioned. Having been told that

another suspect had implicated him in the crime, Edwards

denied any involvement in <he crime, gave an alibi, and tried

to negotiate a deal. The inte-rogating officer told Edwards

that he wanted a statement anc that he had no authority to

make a deal. Thereafter, Edwards ‘elephoned an attorney but

hung up after a few moments. Edwerds then told the officer

that he wanted an attorney before making a deal.’ ‘‘At that

point, questioning ceased and Edwards was taken to county

jail.”’ 451 U.S. at 479. The next morning two detectives called

on Edwards at the county jail. Although he said that he cid not

want to talk to the detectives, Edwards was told that he must.

After being given additional M:randa warnings and listening to

past of a tape recording of an alleged accornplice’s statement,

Edwards confessed. /d.

- -

* In the current posture of this case, it is unnecessary to include either a

fuller recitation of its procedural history or a statement of its facts, our

’ The Arizona Supreme Court found that, although the question was

arguable, Edwards’ statement constituted, inéer alia, a request for

counsel. 451 U.S. at 480 n.6. The Court uncritically accepted this deter-

mination. 451 U.S. at 482.

6a

The Supreme Court determined that Edwards’ confession,

given during the second custodial interrogation, was inad-

missible. Specifically, the Court stated:

[w]e now hold that when an accused has invoked his

right to have counsel present during custodial inter-

rogation, a valid waiver of that right cannot be

established by showing only that he responded to

if he has been advised of his rights. We further hold

that an accused, such as Edwards, having expressed

his desire to deal with the police only through

counsel, is not subject to further interrrogation by

the authorities until counsel has been made

available to him, unless the accused himself initiates

further communication, exchanges or conversations

451 U.S. at 484-85 (footnote omitted). Under this test Ed-

wards’ confession was deemed inadmissible because, after in-

voking his Miranda right to counsel, Edwards was subjected to

additional interrogation which he did not initiate, without

counsel having been made available to him. 451 U.S. at

486-87.

The facts of this case are almost identical to those of Ed-

wards. In White II we found that, although not clear and une-

quivocal, White’s statement during an initial interrogation:

“I'd rather see an attorney,’’ constituted a request for counsel

under Miranda. 611 F.2d at 189-90.* Under Edwards, after re-

should not have been subjected two days later to interrogation

* This determination was inconsistent with the district court's finding on

remand, see 611 F.2d 189-90, but was consistent with the conclusion of

the Illinois Supreme Court. See 611 F.2d at 188 1.8.

7a

been made available to him.* Consequently, when White con-

fessed during the second interrogation he had not validly

waived his Miranda rights. Nor did his confession itself con-

stitute a valid waiver. Thus, White’s confesssion was inad-

‘esible.

* In White I] we stated that the prosecution still may demonstrate a

waiver even where, after a request for counsel, the police initiate further

contact with an accused without counsel having been made available to

him. 611 F.2d at 192. This clearly conflicts with the holding in Edwards

reproduced in the text. In our previous opinion we also relied in part

upon the fact that the officers who conducted the second interrogation did

not know of White's previous request for counsel. 611 F.2d at 192-93. In

Edwards the second :nterrogation also was conducted by detectives other

than those who conducted Edwards’ initial interrogation. However, the

Court did not indicate in its opinion whether the second interrogators

knew of Edwards’ previous request for counsel. 451 U.S. at 479. Thus, it

apparently did not matter in Edward: whether or not the second inter-

rogators knew of the defendant's previous request for counsel. Conse-

quently, we believe that it would be inconsistent with Edwerds to find

White's confession admissible because the second interrogators were not

informed of his request for counsel. To so hold would be tantamount to

creating a ‘‘ good faith’’ exception to the Edwards rule, which restricts in-

terrogation after a suspect's request for counsel, and might permit

relatively easy circumvention of that rule. If the Supreme Court had

desired to formulate such a rule, it could have so indicated in Edwards

itself. Without additional support in the Court’s opinion, we are reluc-

tant to interpret Edwards as incorporating a ‘‘good faith’’ exception.

The Edwards opinion, 451 U.S. at 486 n.9, also cites with apparent ap-

proval two Fifth Circuit decisions, Nash 0. Estelle, 597 F.2d 513 (5th Cir.)

(em banc), cert. dened, 444 U.S. 981 (1979), and Thompson 0. Wainwright,

601 F.2d 788 (5th Cir. 1979), which may impact upon our disposition of

this case. According to Nash, 597 F.2d at 517, and Thompson, 601 F.2d at

772. where, as in both this case and Edwards, during a custodial inter-

rogation a suspect makesan equivocal or unclear request for counsel, fur-

ther questioning is permitted to clarify the suspect's request. (In United

States v. Nielson, 392 F.2d 849 (7th Cir. 1968), this court required that

continued on next page

8a

As stated above, in two previous appeals in this case we did

not have to decide, as respondent Finkbeiner urged us to do,

whether to extend the rationale of Stone v. Powell, 428 U.S. 465

(1976), to bar habeas relief on the basis of a Miranda claim. See

note 4, supra and accompanying text. However, our conclu-

sion that White is entitled to habeas relief under Edwards com-

pels us to resolve that question now. For reasons discussed

more fully below, we decline to extend Stone.

The holding of Stone is deceptively simple:

[Where the state has provided an upportunity for

full and fair litigation of a Fourth Amendment

claim, a state prisoner may not be granted federal

habeas corpus relief on the grouna that evidence ob-

tained in an unconstitutional search or seizure was

introduced at his trial.

428 U.S. at 494 (footnotes omitted).'° However, the basis and

perimeter of Stone remain obscure and ambiguous. See Stone,

centinued from previous page

such an inquiry be conducted.) Whether a clarifying inquiry would have

been permissible (or required) aiter White made his equivocal request for

counsel, the additional interrogation conducted in this case was not

designed to clarify White’s request but to clicit a confession. Thus, the

additional interrogation was impermissible even under Nash and Thomp-

son. We have no occasion to consider whether additional questioning

merely to clarify White's request would have been permissible under Ed-

wards

© Thus, on its face the holding in Stone applies only to claims based upon

Mapp v. Ohio, 367 U.S. 643 (1961).

9a

428 U.S. at 503-06 (Brennan, J., dissenting); U/nited States ex

rel. Sanders, 460 F.Supp. at 1141-42."

Some insight may be gained by looking backward at the

concurring opinion of Justice Powell, the author of Stone, in

Schneckloth v. Bustamonte, 41? J.S. 218, 250-75 (1973) (Powell,

J., concurring), and by examining Rose v. Mitchell, 443 U.S.

545 (1979), decided three years after Stone, in which, in its only

decision explicitly resolving an argument to extend Stone

beyond the Fourth Amendment,'? the Court held that Stone

did not bar a habeas petitioner’s claim of racial discrimination

in the selection of members of the grand jury by which he was

indicted.'* In his Schneckloth concurrence, Justice Powell ex-

amined the history and purpose of the writ of habeas corpus.

'! The reasons underlying the Court's holding as well as its meaning are

matters which have engendered a plethora of scholarly debate. Eg ,

Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule Ayter Stone v.

Powell, 1982 Colum. L. Rev. .. . (publication forthcoming); Comment,

Development of Federal Habeas Corpus Since Stone v. Powell, 1979 Wis. L. Rev.

1145 (hereinafter cited as ‘‘Comment, Development of Federal Habeas Cor-

pus’’); See Also United States ex rel. Sanders v. Rowe, 460 F . Supp. 1128, 1142

n.37 (N.D. Ill. 1978) (Boa, J.) (collecting commentaries on Stone).

'? The Fifth Circuit declined to extend Stone to a double jeopardy claim in

Greene v. Massey, 546 F.2d 51, 53 n.6 (5th Cir. 1977). In the Supreme

Court, the respondents again contended that Stone should be so extended.

See United Stases ex rel. Sanders 0. Rowe, 460 F Supp. at 1143. However, in

reversing the Fifth Circuit the Supreme Court did not even mention the

respondent’s argument based on Stone. Greene 0. Massey, 437 U.S. 19

(1978).

'® Predictably, Rose also has garnered considerable attention from legal

scholars pursuing the meaning of Stone. Eg. Dukes, Rose v. Mitchell and

Justice Lewis Powell: The Role of Federal Courts and Federal Habeas, 23 How.

L. J. 279 (1980); Note. The Supreme Court, 1978 Term, 93 Harv. L. Rev.

60, 199-209 (1979).

continued on next page

10a

412 U.S. at 252-56. Based on this examination, he severely

criticized the ‘‘extension’’ of the writ to permit habeas peti-

tioners to raise constitutional claims having no bearing on

their guilt or innocence. 412 U.S. at 256-58. Thus, in

Schneckloth Justice Powell seemingly embraced the thesis of

Judge Henry Friendly in his seminal article /s Innocence Rele-

vant? Collateral Attack on Criminal Judgments, 38 U.Chi. L.Rev.

142 (1970) (arguing that only claims related to guilt or in-

nocence should be cognizable on federal habeas corpus) (cited

in Schneckloth, 412 U.S. at 258 n.12). By comparison, Stone

seems to sweep less broadly. See Stone, 428 U.S. at 494 n.37

(Stone not concerned with the scope of the federal habeas

statute as a vehicle for litigating constitutional claims general-

ly). Rose reinforces our view that, whatever its reach, Stone

does not incorporate the broad-based curtailment of federal

habeas jurisdiction contemplated by Justice Powell’s concur-

rence in Schneckloth. Indeed, in arguing that habeas litigation

of the racial discrimination claim at issue in Rose should be

barred because the asserted claim was unrelated to the fairness

of the petitioner’s trial, Justice Powell relied more on his con-

currence in Schneckloth than on his opinion of the Court in

Stone. See Rose, 443 U.S. at 579-88 (Powell, J., concurring in

judgment).

Because of, or perhaps despite, the cryptic nature of Stone

virtually uniformly lower courts either have refused to, or

continued from previous page

There is some debate whether Part IIB of the opinion of the Court in

Rose which resolves the question whether Stone should be extended, con-

stitutes part of the Court's holding. Sze Rose, 443 U.S. at 582 n.3 (Powell,

jJ., concurring in judgment). However, dissenting Justices White and

Stevens also joined this part of the Court’s opinion. 443 U.S. at 588.

Thus, including Justices Brennan and Marshall, both of whom joined the

entire opinion of the Court, a majority of the Court agreed in Rose that

Stone should not be extended. See The Supreme Court, supra, at 199 n.8.

lla

have stated in dicta that they would not, extend Stone beyond

Fourth Amendment claims.'* We are not bound by any of

these decisions, but they strongly suggest the result we should,

and do, reach in this case.

'* Prior to Rose, one district court, in dicta, did state that Stone should be

applied to Miranda claims. Richardson v. Stone, 421 F.Supp. 577 (N.D.

Cal. 1976). However, after Rose both the Ninth Circuit and another

district court in California independently rejected the Richardson court’s

conclusion. Patterson v. Warden, San Louis Obispo, 624 F.2d 69 (9th Cir.

1980) (per curiam); Berg v. Morns, 483 F. Supp. 179, 184n.3 (E.D. Cal.

1980). In White I, we stated in dicta that a “‘forceful argument’’ can be

made for extending Stone to Miranda claims. 570 F.2d at 200 n.2.

However, prior to that, this court also had indicated in dicta that it would

not so extend Stone. United States ex rel. Henne v. Fike, 563 F.2d 809, 812

(7th Cir. 1977) (per curiam), cert. denied, 434 U.S. 1072 (1978). Many

other courts, either in holdings or dicta, are in accord with Henne, while

no other court is in accord with Richardson. See Harryman v. Estelle, 616

F.2d 870, 872 n.3 (5th Cir.) (en banc), cert. denied, 449 U.S. 860 (1980)

(extension arg. ..ent made for first time on appeal); Wilson o. Henderson,

584 F.2d 1185, 1189 (2d Cir. 1978) (dicta), cert. denied, 442 U.S. 945

(1979) (‘The holding in Stone was expressly grounded upon Fourth

Amendment search and seizure issues and the exlusionary rule.’’); Smith

v. Wainwright, 581 F.2d 1149, 1151 (5th Cir. 1978) (dicta); Comnistraci v.

Smith, 470 F. Supp. 586, 590 (S.D.N.Y. 1979) (dicta) (Stone rationale on-

ly applicable to search and seizure issues); United States ex rel. Sanders v.

Rowe, note 11, supra.

Lower courts also have declined to extend Stone to claims other than

Miranda claims. See Morgan v. Hall, 569 F .2d 1161, 1168-69 (1st Cir. ), cert.

denied, 437 U.S. 910 (1978) (claim that prosecutor commented on defen-

dant’s silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976)); Moore v.

Cowan, 560 F.2d 1298, 1301 (6th Cir. 1977), cert. denied, 435 U.S. 929

(1978) (‘‘comment on silence’’ claim considered despite failure to raise at

trial and in district court but found to be harmless error); Green v. Massey,

note 12, supra (double jeopardy claim); United States ex rel. Burton v. Cuyler,

439 F. Supp. 1173, 1182 n.14(E.D. Pa. 1977), aff'd mem. , 582 F.2d 1278

(3d Cir. 1978) (dicta) (denial of right to counsel at line-up); Szaraz o.

Perini, 422 F. Supp. 8, 10 (N.D. Ohio 1976) (suggestive identification

continued on next page

i2a

A.

First, there is a jurisprudential reason underlying our

refusal to extend Stone to Miranda claims.'* We doubt whether

we have the power to do so, believing that such an extension of

Stone may be a matter for the Supreme Court. In Wainwright v.

Sykes, 433 U.S. 72, 87 n.11 (1977), the Court acknowledged

the question whether Stone applies to Miranda claims.

However, the Wainwright Court determined that the rule of

Francis v. Henderson, 425 U.S. 536 (1976), should govern the

cognizability of a Miranda claim in a federal habeas pro-

ceeding. Thus, the Court held that federal habeas review of a

Miranda claim is unavailable where there has been a state pro-

cedural waiver, absent a showing of ‘‘cause’’ and ‘‘preju-

dice.’’ 433 U.S. at 87.

continued from previous page

claim). See Also Swicegood v. Alabama, 577 F.2d 1322, 1325 (5th Cir. 1978)

(Stone applicable where fruit of illegal arrest is line-up identification but

does not bar challenge to line-up procedures themselves) (discussed in

Comment, Development of Federal Habeas Corpus, supra note 11, at 1174).

*® Concurring in Brewer v. Williams, 430 U.S. 387, 414 (1977), Justice

Powell remarked that the ‘‘applicability of Stone in the Fifth and Sixth

Amendment contexts raises a number of unresolved issues.’’ He noted

that Fifth Amendment claims often involve challenges to the fairness of

the trial or the integrity of the ‘actfinding process and cautioned that the

question whether Stone should be so extended should be resolved only

after a full exploration of the implications of such a ruling. The Supreme

Court has not yet explored the implications of extending Stone to Miranda

claims. As stated in the text, we believe that the Court :tself should decide

initially whether to so extend Stone. However, we note that the Miranda

claim at issue here does not involve merely a ‘‘technical’’ violation of

Miranda, such as the failure to give complete warnings at issue in Michigan

v. Tucker, 417 U.S. 433 (1974). Rather, the Miranda violation which oc-

curred in this case denied White the most crucial protection recognized in

Pe SNR EE | ne i te Nl at nat

tion. See Miranda, 384 U.S. at 469-71.

13a

Wainwright v. Sykes necessarily permits habeas litigation of a

Miranda claim, such as the one at issue here, which was

litigated in state court, see note 5, supra, because such litigation

clearly is permissible under Brown v. Allen, 344 U.S. 443

(1953), which was cited in Wainwnght without its continued

viability being questioned. 433 U.S. at 87. Brown permitted

habeas litigation of claims which were raised in state court.

However, Stone forecloses habeas litigation not only of claims

which were not litigated in state court (and, therefore, pro-

cedurally waived in most cases), but almost invariably bars

claims which were so litigated as well. See Comment, Develop-

ment of Federal Habeas Corpus, supra note 11, at 1153-67. Thus,

to extend Stone to Miranda claims by implication would over-

rule Wainwright and Brown v. Allen.'* Clearly, even if we were

so inclined, we have no authority implicitly to overrule or

limit these Supreme Court decisions. Thus, to the extent that

an extension of Stone would be inconsistent with Wainwright

and Brown, it would be beyond our power to extend Stone.

Prudence also dictates that we leave an extension of Stone to

Miranda claims to the Court. As Justice Marshall noted in

Mincey v. Arizona, 437 U.S. 385, 402-05 (1978) (Marshall, J.,

concurring), Stone places an additional responsibility upon the

Court on direct review of cases raising Fourth Amendment

claims by making direct review by the Court virtually the only

vehicle for federal court examination of such claims. Of

course, the Court cannot review as many such claims as were

subject to federal court scrutiny when federal habeas review

® Indeed, it has been argued that Stone itself retreated from Brown 0.

Allen and reinstated the regime of Frank 0. Mangum, 237 U.S. 309 (1915),

with respect to Fourth Amendment claims, but that Rose vo. Mitchell in-

dicates the Court's unwillingness to resurrect the Frank rule for all claims.

In this view, Rose effectively overrules much of Stone and reaffirms Brown.

See Note, The Scope of Federal Habeas Corpus Review; Rose v. Mitchell, 21

B.C.L. Rev. 948, 958, 968 (1980).

l4a

was available for them. At the same time, because their

Fourth Amendment decisions are less likely to be subject to

review in the federal courts, state courts may be less likely to

follow the Fourth Amendment decisions of their respective

circuits, causing increasing inconsistencies to develop in the

‘*Fourth Amendment law.’’ The Supreme Court eventually

must harmonize the inconsistencies which do arise by gran-

ting certiorari in more cases raising Fourth Amendment claims

on direct review. Alternatively, we simply must live with in-

creasingly diverse ‘‘Fourth Amendment law.’’ Whether to

place such additional pressure on the Court or to accept such

diversity in the ‘‘Fifth Amendment law’’ are matters which

the Supreme Court itself should resolve.'’

Even assuming that we may extend Stone to Miranda claims,

there are additional reasons for refusing to so extend Stone

here. The Stone Cour: primarily employed a utilitarian

analysis to determine that Fourth Amendment claims should

not be cognizable in federal habeas corpus proceedings. 428

U.S. at 489. It balanced the costs of applying the Fourth

Amendment in such proceedings against the benefits of such

an application and found that the former outweighed the lat-

ter. Having already stated that the Fourth Amendment exclu-

sionary rule is not a personal constitutional right but a

*‘judicially created means of effectuating the rights secured by

the Fourth Amendment,”’ Stone, 428 U.S. at 482, 486, the

Court held that the Fourth Amendment exclusionary rule

need not be applied in federal habeas proceedings. 428 U.S. at

‘” For an interesting and illuminating discussion of the interplay between

state and federal courts and the role of federal habeas corpus jurisdiction,

see Cover & Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86

Yale LJ. 1035 (1977).

15a

489-94; see generally Comment, Development of Federal Habeas

Corpus, supra note 11, at 1150-53.'*

'® We intuitively believe that Stone resulted primarily from the

dissatisfaction of a majority of the Court with the Mapp rule. See Stone, 428

U.S. at 496-502 (Burger, C.J., concurring); id. at 536-42 (White, J.,

dissenting). Foreclosing the application of that rule on habeas corpus was

one way tc limit it without overruling Mapp itself, the votes for which ap-

parently have not been forthcoming. See United States ex rel. Sanders, 460 F .

Supp. at 1143. Of the justices on the Court who have commented upon

the question, however, only the Chief Justice has expressly urged extend-

ing Stone to Miranda clairns. Brewer v. Williams, 430 U.S. at 426-27

(Burger, C.J., dissenting). As discussed in note 15, supra, Justice Powell

has recognized that such an extension raises unresolved issues which re-

quire the Court's close examination. Brewer v. Williams, 430 U.S. at 414

(Powell, J., concurring). Moreover, the Court simply has not been as

hostile to Miranda as it has been to Mapp. E.g., Edwards, (unanimous deci-

sion that defendant's confession was obtained in violation of Miranda). In

fact, the Court recently extended Miranda. See Estelle v. Smith, 451 U.S.

454 (1981) (Burger, C.J.) (applying Miranda to in-custody, court-ordered

psychiatric examination).

Among others, Justice Brennan has questioned the legal basis for the

Court's application of a utilitarian analysis to determine the availability

of the exclusionary rule:

[T]he Court has undertaken to strike a ‘balance’ between the .

‘policies’ it finds in the Bill of Rights and the ‘competing interes(t]’

in accurate trial determinations. This balancing effort is completely

freewheeling. Far from applying criteria intrinsic to the Fourth and

Fifth Amendments, the Court resolves succeeding cases simply by

declaring that so much exclusion is enough to deter police miscon-

duct. That hardly conforms to the disciplined analytical method

described es ‘legal reasoning’ through which judges endeavor to for-

1c late or derive principles of decision that can be applied con-

Siste atly and predictably .

.{B]y treating Fourth and Fifth Amendment privileges as mere

incentive schetnes, the Court denigrates their unique status as con-

stitutional protections.

: continued on next page

16a

The utilitarian analysis utilized by the Stone Court logically

may not be limited to the Mapp exclusionary rule. United States

ex rel. Sanders, 460 F Supp. at 1142. Indeed, in other contexts

the Court has utilized such an analysis to determine the ap-

plicability of Miranda. E.g., Michigan v. Tucker, 417 U.S. 433

(1974) (prosecution use of testimony of witness whose identity

was made known to police in defendant’s pre-Miranda

custodial interrogation at trial to which Miranda applied).'*

Thus, partially because of the limited deterrence which would

result from a contrary rule, the Court has permitted the im-

peachment of a defendant who testifies in his own behalf with

statements otherwise inadmissible under Miranda. E.g., Oregon

v. Hass, 420 U.S. 714 (1975); Harns v. New York, 401 U.S. 222

(1971). Against this background, we may assume that a deci-

sion whether to extend Stone to Miranda claims should be in-

formed by a utilitarian analysis. Applying such an analysis,

however, we find that the appreciable differences between the

Miranda and Mapp rules support our conclusion that an exten-

sion of Stone to Miranda claims would be unwarranted. Compare

continued from previous page

United States v. Havens, 446 U.S. 620, 633-34 (1981) (Brennan, J., dissent-

ing) (citations omitted) (emphasis in ortginal); see also Stone, 428 U.S. at

510-15 (Brennan, J., dissenting). Legal scholars have joined the debate.

Compare Monaghan, The Supreme Court, 1974 Term — Foreword: Constitu-

tional Common Law, 89 Harv. L. Rev. 1 (1975), with Schrock & Welsh,

Reconsidering the Constitutional Common Law, 91 Harv. L. Rev. 1117

(1978). We will not resolve the difficult questions raised by the applica-

tion of a utilitarian analysis to determine the availability of the exclu-

sionary rule.

'8 In Michigan v. Tucker the Court found that reliability was not at issue

witness to whom the suspect's statements lead the police was subject to

cross-examination at trial. 417 U.S. at 449. Unlike the present case, the

statement of the accused himself was suppressed in Tucker, 417 U.S. at

437.

l7a

United States ex rel. Sanders, note 11, supra; Halpern, note 11,

supra (suggesting that Stone should not be extended to Miranda

claims), with Comment, Development of Federal Habeas Corpus,

supra note 11, at 1174.2°

First, the rights secured by the Fourth Amendment protec-

tion against unreasonable searches and seizures are not inex-

tricably linked to the fairness and accuracy of the criminal

process, as is the Fifth Amendment privilege against self-

incrimination. United States ex rel. Sanders, 460 F Supp. at 1145.

As viewed by the Court in Stone, the Fourth Amendment ‘‘was

intended to protect the ‘sanctity of a man’s home and the

privacies of life,’ Boyd v. United States, 116 U.S. 616, 630

(1886) from searches under unchecked general authority.”

Stone, 428 U.S. at 482 (footnote omitted). Although they fre-

quently are implicated in the criminal process, Fourth

Amendment privacy values may just as frequently be im-

plicated where criminal proceedings are neither likely nor

contemplated. Thus, because the primary justification of the

Mapp rule is ‘‘the deterrence of police conduct that violates

Fourth Amendment rights,’’ 428 U.S. at 486, it has been

2 Rose v. Mitchell, 443 U.S. 545 (1979), may stand for the broad, but

unremarkable, proposition that claims which are materially different

from Fourth Amendment claims are not barred by Stone. The Rose Court

noted that in Stone the Court stressed the narrowness of its decision.

**Mindful of [the] limited reach of Stone. . ."’ 443 U.S. at 560, the Court

proceeded to consider the differences between the racial discrimination

clain. there at issue and the Fourth Amendment claim presented in Stone.

Of course, many of the differences noted in Rose between Fourth Amend-

ment and racial discrimination claims, 443 U.S. at 561-64, are not pre-

sent with respect to Miranda claims. However, we do not read Rese so nar-

rowly as to require the application of Stone to all claims which do not differ

from Fourth Amendment claims in the same manner as racial

discrimination claims. But .cc The Sapreme Court, supra note 13, at 204

(suggesting that after Rese only claims umpugning the fairness of state trial

or corrective procedures should be cognizable on federal habeas corpus).

18a

criticized because ‘‘[i]t provides no recompense for the inno-

cent and it frees the guilty.’’ Schneckloth, 412 U.S. at 268 n.26

(Powell, ]., concurring) (quoting Oaks, Studying the Exclustonary

Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 755 (1970)).

By comparison, Miranda inciudes¢wo prophylactic rules: a

procedural safeguard, in the form of required warnings, to ef-

fectuate the Fifth Amendment privilege against self-

incrimination; and an exclusionary remedy to enforce the

warning requirement. See Miranda 384 U.S. at 444, 479. The

necessary predicate of Miranda is the Court’s determination

that the privilege against self-incrimination applies during a

custodial police interrogation. 384 U.S. at 461. The Fifth

Amendment privilege, like the prohibiuon against the use of

involuntary confessions, reinforces the ‘‘underlying principle

in the enforcement of our criminal law: that our is an ac-

cusatorial and not an inquisitorial system — a system in which

the state must establish guilt by evidence independently and

freely secured and may not by coercion prove its charge

against the accused out of his own mouth.”’ Rogers v. Rich-

mond, 365 U.S. 534, 541 (1961). Consequently, unlike the

Mapp rule, which, according to Stone, was designed only to

deter police conduct in order to foster values which may, or

may not, be implicated in the criminal process, Miranda

theory of criminal law, that, in a sense, are its heart. Also

unlike the Mapp rule, the Miranda rules were not intended sole-

ly to deier egregious police behavior, but to protect a criminal

suspect’s exercise of the privilege which is one of the distinc-

tive components of our criminal law. Cf Estelle v. Smith, 451

U.S. 454, 466-67 (1981); Fare ». Michael C., 442 U.S. 707,

719-20 (1979); United States ex rel. Riley v. Franzen, 653 F.2d

1153, 1158-61 (7th Cir.), cert dened, ___._ U.S. ___., 102 S.

Ct. 617 (1981) (primary purpose of Miranda is to protect

suspect's exercise of Fifth Amendment privilege against self-

incrimination).

19a

In this sense, the racial discrimination claim at issue in Rose

v. Mitchell, note 29, supra, to which the Court refused to extend

Stone, is more like a Miranda claim than it is like a Fourth

Amendment claim. As the Rose Court recognized, ‘*[d]iscrim-

ination on the basis of race .. . is especially pernicious in the

administration of justice’’ The Rose Court also noted that the

exclusion of individuals from a grand jury on the basis of race

‘strikes at the fundamental values of our judicial system

....°” Rose, 443 U.S. at 555-56.

Second, the holding in Stone almost entirely eliminated

litigation of Fourth Amendment claims in federal habeas pro-

ceedings. The Stone Court believed that this elimination was

beneficial in at least two respects. 428 U.S. at 491 n.31. It

avoided on potential source of friction between state and

federal courts. It also reduced the workload of the federal

judiciary by precluding litigation of a ubiquitous claim on

federal habeas corpus. See Schneckloth, 412 U.S. at 260-61,

263-65 (Powell, J., concurring).

Neither of these objectives would be accomplished by ex-

tending Stone to Miranda claims. Most likely, stripped of his

ability to raise a Miranda claim, a habeas petitioner would

challenge his confession as having been made involuntarily.

This would compel federal habeas courts to return to the case-

by-case ‘‘totality-of-the-circumstances’’ test which, to a great

extent, Miranda replaced. Thus, because application of the

™ Unlike Mapp o. Ohw, 367 U.S. 643 (1961) Miranda had several

beneficial effects. It provided police with concrece guidelines, promoting

self-regulation and reasonably ensuring the admussibility of confessions

when its dictates are followed Miranda also gave lower courts easily ap-

plicable rs and obviated in many instances the case-by-case analysis

previously utilized to resolve challenges to confessions No such benefits

accompanied Mapp, which contained only a remedial component and did

a

20a

‘‘old”’ test is more uncertain, friction resulting from differing

decisions by state and federal courts, at times between a state

supreme court and a federal trial court, would not be reduced

significantly by extending Stone to Miranda claims. Moreover,

application of the ‘‘totality’’ test likely would require the ex-

penditure of more federal judicia) resources than application

of the comparatively perspicuous Miranda rules.

Finally, another consideration in Stone was the Court’s

belief that evidence seized in violation of the Fourth Amend-

ment uniformly is reliable. According to this view, application

of Mapp typically yields only a windfall for the guilty. Stone,

428 U.S. at 490-491 n.31; see also Brewer v. Williams, 430 U.S.

at 413 n.2 (Powell, J., concurring); Schneckloth, 412 U.S. at

258 (Powell, J., concurring); but see Comment, Development of

Federal Habeas Corpus, supra note 11, at 1171 n.174 (discussing

applicability of Stone where fruit of unlawful arrest is line-up

identification).?? Even if this consideration is still viable, see

note 22, supra, Miranda claims cannot fairly be characterized

as entirely non-guilt-related. In_Johnson v. New Jersey, 384 U.S.

719 (1966), in deciding not to apply Miranda retroactively and

although acknowledging that it was overinclusive, the Court

observed: ‘‘|Miranda guards} against the possibility of

unreliable statements in every instance in in-custody inter-

*? In light of Rose, which permitted babeas litigation of a ncn-guilt-

related claim, it would appear that Stone does not bar every claim which

may be characterized as non-guilt, or non-reliability-related. But see Rose,

443 U.S. at 587 n.10 (Powell, ]., concurring in judgment); The Supreme

Court, supra note 13, at 203-05. Thus, this punative basis of Stone may no

longer require our consideration Also, in Stone itself Justice Powell

shifted emphasis from the guilt innocence rationale he expounded in

Schneckloth Wo a wulitarian analysis This may have been necessary to at-

tract a mayority of the Court Ser Boyte, Federal Habeas Corpus After Stone v.

Powell A Remedy Only for the Arguably Innocent? 11 U. Rich. L. Rev. 291

(1977). Seloff, Litgater and Relitigation The Uncertain Status of Federal

Habeas Corpus for State Prisoners. 6 Hotstra L. Rev. 297 (1978).

at

2la

rogation .... [It] provide[s] important new safeguards

against the use of unreliable statements at trial.’’ 384 U.S. at

730. See Also United States v. Whitson, 587 F.2d 948, 951 n.5 (9th

Cir. 1978). In this regard, Miranda may be viewed as creating

a per se rule regarding the voluntariness of confessions: unless

the Miranda requirements have been satisfied a confession can-

not be said to be voluntary under the “‘totality-of-the-

circumstances”’ test. See Miranda, 384 U.S. at 458. Although

the requirement that a confession be voluntary in order to be

admissible does not rest solely on concern for reliability,

neither is the reliability of a confession wholly divorced from

its voluntariness. Rogers v. Richmond, 365 U.S. at 541; see also

Michigan v. Tucker, 417 U.S. at 448 n.23.

For these reasons, we conclude that White was not barred

by the rationale of Stone v. Powell from obtaining federal

habeas relief on the ground that his confession was inadmissi-

ble under Miranda.

Having concluded that White’s confession was inadmissi-

ble and that the rationale of Stone v. Powell does not preclude

granting habeas relief in this case, we reverse the judgment of

the district court and remand with instructions to grant the

writ and order White’s release within ninety days of the is-

suance of this court’s mandate, unless White is retried within

that period.

Reversep and REMANDED

22a

Woon, Circuit Judge, concurring.

In White II, | agreed with District Judge Morgan in con-

struing the defendant’s brief conversation with a police official

not to be a request for counsel, although it was a close deter-

mination. The Supreme Court of Illinois, however, had found

otherwise.' Since than I have been reminded by Sumner v.

Mata, 449 U.S. 539 (1981), that Judge Morgan and I are not

that free to disregard that factual conclusion of the state court.

That is, I agree, as it should be.

Now, in view of Edwards. | am compelled to concur in direct-

ing the writ to issue as | see nothing in the record to suggest

that White ‘‘initiated’’ the contact with the officers which led

to his confession, although there were other circumstances ex-

amined in our first opinion which suggested that there had

been a waiver of the right to counsel if in fact counsel had been

requested.

Nor am | ready to extend Stone v. Powell in this case.

Therefore, I join in Judge Swygert’s analysis of this case in its

new configuration.

About 13 years have passed since the defendant was found

guilty of murder in the state trial. It is regrettable that our

judicial processes bring us to this conclusion at such a late date

that the practical chances of a retrial are surely remote.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

' Perple v. White, 61 Ill.2d 288 (1975)

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