Opposition — Nix v. Williams

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WO. 32-1651

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1962

CRISPUS NIX, Warden of the lowa

State Penitentiary,

vs. ”

ROBERT ANTHONY WILLIAMS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

THE UNITED STATES COURT OF APPEALS

POR THE EIGHTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

: ROBE.RT BARTELS

College of Law

é. Arizona State University

‘ Tempe, Arizona #52867

4 (602) 965-7053 sta

Counsel for Respondent i

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AUTHORITIES

964)

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NO. 82-1651

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

CRISPUS NIX, Warden of the Iowa

State Penitentiary,

Petitioner,

vs.

ROBERT ANTHONY WILLIAMS,

Respondent.

- oo eee

In Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Since the filing of the Petition, the opinion of the Court

Appeals has been reported at 700 F.cd 1164.

STATEMENT OF THE CASE

Since most of the underlying facts in this case are recounted

in this Court's opinions in Brewer v. Williams, 430 U.S. 387 (1977),

they require only brief attention here. on December 24, 1968, ten

year-old Pamela Powers disappeared from the Des Moines, Iowa,

YMCA. Suspicion focused on Respondent Williams, and a warrant for

his arrest on a charge of “child-stealing” was filed in state

court. On December 26, acting on the advice of his attorney,

Henry T. McKnight, Williams surrendered to the police in Daven-

port, Iowa, where he was arraigned on the warrant. Later on the

game day, Detective Cletus Leaming and another Des Moines police

officer drove to Davenport to pick up Williams and return him to

Des Moines. 430 U.S. at 390-391.

Before leaving Des Moines, Leaming agreed with Williams’

attorney that Williams would not be questioned on the return trip.

Nevertheless, during the trip from Davenport to Des Moines, Leaming

initiated a conversation with Williams that Leaming later conceded

was purposefully dezigned to elicit as much incriminating infor-

mation as possible from Williams before he could reach his attor-

eaming's efforts included an appeal to Williams’ religious

ney.

sympathies and statements that he and Williams should stop on the

way to Des Moines and locate the body of the victim. Williams

complied with these suggestions, and led Leaming and other police

officers to the body. 430 U.S. at 391-393.

At Williams’ first trial, the State introduced into evidence

statements to Leaming. The resulting conviction was af-

firmed by the Iowa Supreme Court. State v. Williams, 182 N.W. 2d

396 (1970). However, in a habeas corpus proceeding, the United

States District Court for the Southern District of Iowa reversed

the conviction, holding tha

Leaming had violated Williams’ Fifth

and Sixth Amendment rights. Williams v. Brewer, 375 F. Supp. 170

(S.D. Iowa 1974). Both the Eighth Circuit Court of Appeals,

Williams v. Brewer, 509 F.2d 227 (1975), and this Court, Brewer Vv.

Williams, supra, affirmed the District Court's reversal.!

At Williams’ retrial, the State sought to introduce evidence

derived from the victim's body under a so-called “inevitable dis-

covery” exception to the exclusionary rule. The trial court up-~

held this effort, finding that the body probably would have been

found by searchers even if Leaming had not vioalted Williams’ con-

aan ——_—

1 phis Court's holding reached only the Sixth Amendment violation.

430 U.S. at 397-98.

stitutional rights.

by the Iowa

(1979). Th

doctrine under

challenged evidse

absence of the u

the constitution

held that the St

260.

Williams aga

Court na numbe

to tr ,owa ipr

covery” doctrine

Williams Nix,

A68). However,

everst | > Pa

700 F.2d 164 (1

its pini t a

Jeclined ¢t i

or hy t ticai-

evidence btaine

ecunsel,” the )

inevitable-disc

benefit without

700 F.2d at 169

held that the st

700 F.2d at 1171

Supieme Court. State v._

Williams' subsequent conviction was upheld

Williaws, 285 N.W. 2d 248

t court articulated a two-pronged inevitable-discovery

which the State was required to show (1) that the

ate ft

robably would ha

constitutio

riolation was comm

ad satisfied bot

ucght habeas cory

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rounds, includi

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lowa NO suU-4

eal the Eight?

the District

983) (Pet at Al) T

single Llssue inevi

je “whether to recog!

independent-source ex

1 in vioiliatior sf the

overy

provi

exception the 5t

ng that the poli

(Pet. at AlO-Al

ve been discovered in the

nal violation, and (2) that

itted in good faith. It then

rh prongs. 285 N.W. 2d at

pus relief in the District

ng a multi-level challenge

ion of the “inevitable dis-

fenied the petition.

9-D, Dec. 18, 1981 (Pet. at

cuit Court of Appeals

Court. Williams v. Nix,

he Court of Appeals confined

vitable discovery. Although it

table-discovery

exception to the rule excluding

sld that “if there is to be an

ate should not receive its

ce did not act in bad faith.*

The Court of Appeals then

tad failed to show lack of bad faith.

7).

SUMMARY OF ARGUMENT

il. Contrary to tne state's assertions, it naa ample notice

of the “good faith" issue on which the Court of Appeals decided

this case: The Iowa Supreme Court announced good faith as an

element of its hypothetical inevitable discovery doctrine; Wil-

liams and the State raised and argued Leaming's good faith both

in the District Court and in the Court of Appeals; and the State

specifically argued that the Court of Appeals should decide the

good faith issue.

2. The decision of the Court of Appeals was correct under

Brown v. Illinois, 422 U.S. 590 (1975), and Dunaway v. New York,

442 U.S. 200 (1979). Williams led Leaming to the body soon after

the violation of his rights; there were no intervening circum-

stances; and Leaming's intentional elicitation of incriminating

information before Williams could consult with his attorney --

in violation of Leaming's agreement with that attorney -- was

flagrantly unconstitutional.

3. This Court need not consider or decide the validity of any

inevitable-discovery doctrine in the context of this case, since

the Court of Appeals was correct in holding (a) that any valid

inevitable-discovery doctrine must include a good faith element

and (b) that good faith was not established. Good faith is a par-

ticularly important issue under the "attenuation" exception to the

exclusionary rule under Brown v. Illinois and Dunaway v. New York,

supra, and there is no reason why*it should be any less an issue

under any inevitable-discovery exception. Moreover, permitting the

introduction of ‘evidence derived from bad faith violations of the

Sixth Amendment would remove the incentive for the police to use

legal means to obtain such evidence, and would impugn the integrity

of the judicial process.

4. The Court of Appeals was correct in concluding that

Leaming did not act in good faith. This court's decision in

Brewer v. Williams, 430 U.S. 387 (1977), established that Leaming

intentionally and purposefully sought to elicit incriminating in-

formation from Williams before he could reach his attorney, and

that this was in violation of an agreement with that attorney.

Especially in light of Massiah v. United States, 37° U.S. 201

(1963), Leaming could not have believed, reasonably or otherwise,

that this conduct did not violate Williams’ Sixth Amendment

rights. Consequently, Leaming's good faith was established under

a “subjective” or an “objective” standard.

5. A grant of certiorari in this case also would be inap-

propriate because even if an inevitable-discovery doctrine without

a good faith element were valid, the result reached by the Court

of Appeals would stand. Additional evidence introduced in the

District Court established (a) that the search for the victim's

body that was initiated two days after her disappearance would not

have extended into Polk County, where the body was located, and

(b) that even if the search had extended into Polk County,

searchers would not have been able to see the body. Thus, even

application of the broadest possible inevitable-discovery doctrine

would affirm the judgment of the Court of Appeals.

6. This is not an appropriate case for this Court to consider

an extension of Stone v. Powell, 428 U.S. 465 (1976), beyond

the Fourth Amendment context. The holding and rationale of Stone

were carefully limited to the judicially-created exclusionary rule

for Fourth Amendment violations. See also Rose v. Mitchell,

443 U.S. 545 (1978). Unlike the claimed Fourth Amendment viola-

t.ons in Stone, the Sixth Amendment violations in this

case involved personal rights, and directly affected the in-

tegrity of the judicial process. Moreover, extension of Stone

would pe especially inappropriate in this case because the con-

stitutional violations were not committed in good faith. Finally,

ypplication of S*o"- *> this case would not chenge the result in

any event, since Williams did not have a full and fair opportunity

to litigate his claims in the state courts.

REASONS FOR DENYING THE WRIT

I. THE STATE HAD AMPLE NOTICE OF, AND LITIGATED, THE

"GOOD FAITH" ISSUE IN THE DISTRICT COURT AND

COURT OF APPEALS.

As noted previously, the Court of Appeals did not reach

the question of whether the “inevitable discovery” doctrine ap-

plied by the Iowa Suprem Court was constitutionally valid.

However, the Court of Appeals did hold that if an inevitable-

discovery doctrine was to be recognized, it must include a “good

faith" element, and that the State had failed to show that Detec-

tive Leaming acted in good faith when he committed the violations

of Williams’ constitutional rights that led to the discovery of

the evidence in question.

The State's first,and lengthiest, complaint about the decision

below is that the State had no “real notice” of the “good faith®

issue on which the Court of Appeals based its holding, and that

that issue should have been remanded to the District Court for a

“limited evidentiary hearing... .” (Pet. at 8-9). ‘This com-

plaint is totally without merit because the State in fact had ample

notice of the “good faith" issue -- and argued it on the merits --

throughout the proceedings in the District Court and the Court of

Appeals:

1. Prior to the filing of the petition for a writ of

habeas corpus in the District Court, the Iowa Supreme Court

identified “good faith" as a critical element in the hypothetical

inevitable-disccvery doctrine it applied. 285 N.W. 2d at

260.

2. The initial memorandum that was filed in the District

Court in support of the petition for a writ of habeas corpus

raised the lack-of-bad faith element of the Iowa Supreme Court's

hypothetical inevitable discovery test. (Memorandum filed

—

Moreover, in uU

Mar. 30, 1981, p. 2 ging that this Court's

decision in Brown v. Illinois, 422 U.S. 590 (1975), required re-

versal of the Iowa Supreme Court's inevitable-discovery Gecision,

Williams argued in the District Court that Detective Leaming’s

conduct was a flagrant i ation of his rights. (7a. at 23).

Cine *¢) sr anevu"™ _ _™~ 7 > . i+ - had r - hed

Since flagrancy is simply ‘ xsite jood faith,

Dunaway OW rk, 442 > 200, 2é b> ane (1979), State v.

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Williams, 28 i1.W. 2d 248, ) (Ia. 1979), this argument certainly

gave notice that Detective Leaming's lack f good faith was an

The at t ale with t? faith”

issue in its initial brief int trict irt, arguing that

Detective Leamin i ct i fait - (Br €f filed April 1,

1981, p 11-12)

4. The District Court not nly recognized the “good

faith” element, but als sipheld the inevitable-discovery test

articulated by the Iowa Supreme Court in part “because the test

re ires a : f xd fait n the part € the police... ."

5. Although Williams' opening brief in the Court of

Appeals argued that Detective Leaming 4id not act in good faith

(Appellant's Brief at 24), the State at no time complained that

in the District Court.

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peals directly ad-

dressed the “good faith” issue on its merits (Appellee's Brief at

22). Moreover, at ora] argument counsel for the State explicitly

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sosition that the State should have the

burden of establishing good faith, and that the State had done so.

700 F.2d at 1169, n.5; 1174-1175 (Pet. at Al0, n.5; A24-A26).

Given the facts outlined above, the State's reliance on Jus-

tice Powell's concurring opinion in Brewer v. Williams, 430 U.S.

387, 414, n.3 (1977) (Pet. at 8-9), is totally misplaced. In

Brewer, Justice Powell declined to consider the applicability of

Stone v. Powell, 428 U.S. 465 (1977), because it had never been

mentioned in any of the briefs, even though the State's Reply

Brief had been filed after Stone was decided. In the instant case,

by contrast, the “good faith" issue had been raised in the Dis-

trict Court and was briefed by both parties in the Court of Appeals

' ’ 2

prior t oral argument.

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In sum, the State had ample notice that Detective Leaming S

700d faith was an issue, and consistently pursued the strategy in

the District Court and Court of Appeals of arguins that good

faith was established on the record before those courts. Conse-

juently, the State’s argument for a remand for a “limited evi-

;

re?

te.

- os . - - a . - eta

II ISION OF F : YF A EAI WAS JRRECT

NDER 2IOR ECISIONS THIS COURT.

This Court als should deny the petition for a writ of

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Cha ice c 3 i sue snouic sve been exclucec because 1

was obtained as the direct result of acts by a state law enforce-

ment officer that (a) violated the Sixt Amendment and (b) were

not committe in "good faith” -- plainly was correct under

Brown T1li is, 422 U.S 590 (1975), and D way v. New York,

In Brown, the defendant was arrested, without probable cause,

at about 7:45 p.m. Following repeated Miranda warnings, he gave

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two incriminating statements, firs 0 p.m., and then

between 2:00 and 3:00 a.m. the following day. This Court re-

versed Brown's conviction, holding tht both statements were

fruits of the illegal arrest, and that neither the Miranda war-

nings nor any other factors sufficiently attenuated the taint of

For similar reasons, the State's references to Jackson v. Denno,

378 U.S. 478 (1964), and United States v. Wade, 388 U.S. 218

(1967) (Pet. at 10-11) also are misplaced.

the illegality. 422 U.S. at 604-605.

In Dunaway. the defendant was taken into enstody without

probable cause and interrogated after he was given Miranda war-

mings. The defendant waived counsel and eventually made state-

ments that incriminated him. Holding that Dunaway was “vir-

y a replica of® Brown, this Court held that the defendant's

statements were illegal fruits of the unconstitutional seizure

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sefendant, and that neither the fact that the police had

complied with Miranda nor the fact that the defendant's state-

nts were voluntary attenuated the taint of the initial ille-

gality. 442 U.S. at 218-219.

In both Brown and Dunaway, this Court's focus was on the

actual causal connection between the initial constitutional vio-

lations and the evidence derived therefrom. This Court specifi-

cally eschewed any simple “but for" causal test; rather, the ques-

tion was whether the challenged evidence was obtained through

exploitation of the primary illegality. In determining that

question, three factors were to be considered: (1) the "temporal

proximity f£ the illegality and the evidence; (2) “the presence

of intervening circumstances"; and (3) “particularly, the purpose

anc flagrancy of the official misconduct ...." This Court

noted specifically that “the burden of showing admissibility

)

, Of course, on the prosecution." 422 U.S. at 603-604; 442

An examination of these factors in the instant case leaves no

doubt as to the correctness of the result reached by the Court of

Appeals. First, the “temporal proximity” of the unconstitutional

statements and the discovery of the body was as close as that in

Brown and Dunaway. Second, there were no intervening circumstances

between the violation of Williams’ constitutional rights and the

discovery of the body. Third, the official misconduct in the

instant case was especially flagrant. As this Court held in Brewer

v. Williams, 430 U.S. 387 (1977), Leaming had agreed with Williams’

he would not interrogate

Davenport lo ws Moines. Nevec-

re?

of conduct which he admitted

s much incriminating infor-

sre he could reach McKnight.

his Court held

was flagrant because “the

tuality of purposefulness’ in

ce’ admittedly undertaken ‘in

cs snaway v. New York,

rown Illinois, supra,

stant case, Leaming's uncon-

lition for evidence

t something incriminating

it side of the coin

nably be said that Leaming

slly set out to elicit

ums before he could get to his

IlI. THE COURT OF APPEALS' CONCLUSION THAT ANY VALID

"INEVITABLE DISCOVERY" DOCTRINE MUST INCLUDE A

"GOOD FAITH" ELEMENT WAS CORRECT, AND DID NOT

CONFLICT WITH DECISIONS IN OTHER CIRCUITS.

This Court has not decided the validity of any “inevi-

table discovery” exception to the exclusionary rule in the Fourth,

Fifth, or Sixth Amendment context. United States v. Crews, 445

U.S. 463, 475, n.22 (1980). However, this Court's decisions re-

garding the evidentiary “fruits” of constitutional violations

strongly suggest the impropriety of such an exception, since those

decisions uniformly have determined the admissibility of challenged

evidence on the basis of whether the evidence “has been come at by

exploitation of [illegal conduct] or instead by means sufficiently

distinguishable to be purged of the primary taint,” Wong Sun v.

United States, 371 U.S. 471, 488 (1964) (emphasis added) -- not

on the basis of whether the evidence hypothetically would have

been discovered if the primary illegality had not occurred. See

also Division II, supra: United States v. Wade, 388 U.S. 218,

240 (1967).°

In any event, this Court need not, and should not, reach the

issue of the validity of an inevitable-discovery doctrine in

this case. Eyen assuming, as the Court of Appeals did, that some

inevitable-discovery doctrine is constitutionally valid, the

evidence in question here was inadmissible because Leaming did

not act in good faith when he purposefully violated Williams’

constitutional rights.

Recognition of any hypothetical inevitable discovery doctrine

would seriously emasculate the purposes of the exclusionary

rule. Under that doctrine, even if the police were able to

obtain evidence by legal means, there would be little incen-

tive for them to use such means, rather than more *"convenient®

illegal means, since the evidence would be admissible in any

event. Application of the hypothetical inevitable-discovery

doctrine also would involve a highly subjective and ambiguous

“factual” inquiry, and hence a high potential for abuse.

In this regard, the iorari complains

ind

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cal

that the Court of Appeals erred in including a "good faith” ele-

ment in the inevitable-discovery doctrine that it assumed to be

valid. siven this Court's prior decisions, however, this com-

plaint has merit. In applying the “attenuation” doctrine to

jeter whether the “but-for” fruit f nstitutional

luct may be admitted into evidence, this srt has made it

lear that t!? fiagrancy of é rimary illegality is a “par-

ti larly” i rtant fact Browr T1li , supra, 422

i* c -¢ 4 [ iway New I TK, ra, 44. — at 218.

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trine are potentially more far-reaching than those of the attenu-

ly a 3 that ¢t é ! 7 >t would

r if wo , t a » & ‘ ttis¢ Sisincentive

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t the intentional use f un nstitutional eans to gather evi-

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lence, rather than less venient nstitutional means.

on . . .

e preceding analysis applies with special force when the pri-

mary illegality is a violation € the Sixth Amendment, rather than

the } irth Amendment. Since Sixth Amendment violations neces-

sarily ‘cur after the initiation of formal judicial proceedings,

Kirby v. Illinois, 406 U.S. 682 (1972), bad faith police conduct

in the Sixth Amendment context directly affects the integrity of

the idicial process. Cf. Stone v. Powell, 428 U.S. 465, 479

(1977); see Division VI, infra.

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IV.

THE COUR1 OF APPEALS CORRECTLY CONCLUDED THAT

DETECTIVE LEAMING DID NOT ACT IN GOOD FAITH.

Having correctly decided that the State could prevail on

an inevitable-discovery theory, if

at all, only upon a showing

that Leaming acted in good faith when he violated Williams’ con-

stitutional rights, the Court of A

such a showing had not been made.

ful

Opinion itself demonstrates, 7

A1l3-A17), this holding was correct

whether good faith is regarded as

issue.

A From what the Court of

jective” point of view, all of the

contradicts any notion that Leamin

that he was not violating Williams

facts already established in this

Williams, supra, lack of g i fait

clusion. Like every court that ha

found that before he left Des Moin

port, Leaming made an agreement wi

would bring Williams straight back

tioning him. 430 U.S. at 391, 410

isolated from counsel, however, Le

ppeals went on to hold that

As the Court of Appeals’ care-

00 F.2d at 1171-1173 (Pet. at

; and this is so regardless of

a “subjective” or “objective”

Appeals characterized as a “sub-

evidence in the record directly

3 acted under an honest belief

' rights. Indeed, given the

Court's holding in Brewer v.

h is essentially a foregone con-

s reviewed this case, this Court

es to pick up Williams in Daven-

th Williams’ attorney that he

to Des Moines without ques-

, 415. As soon as Williams was

aming broke this agreement by

purposefully and intentionally attempting to obtain as much in-

criminating

before Williams could

the body --

at 399, 407-408, 411-412.

° As the Court of Appeals noted, 7

the record would not support any

actions on the ground that he wa

alive. That the State does not

a reason for Leaming's conduct i

Leaming insisted at the first tr

told him that

information as possible --

the victim was dead

including the location of

reach his attorney. 430 U.S.

00 F.2d at 1172 (Pet. at Al5),

attempt to “justify” Leaming'’s

s hoping to find the victim

suggest that it could prove such

s hardly surprising, since

ial that Williams’ attorney had

(2p. to Brewer v. Williams,

——— ee

Supra, at 96-97), and told Williams that they should stop and

locate “the body®

U.S. at 393).

in order to en

sure a “Christian burial” (430

Especially given Massiah v. United States, 377 U.S. 201 (1963),

which this Court hae held to he “constitutionally indistinguish-

able” from this case, 430 U.S. at 400, it could not reasonabiy be

inferred that Leaming did not realize that intentionally and de-

signedly attempting to elicit evidence from a defendant before he

could reach his attorney -- in violation of an agreement with the

attorney -- would be unconstitutional. This conclusion is sup-

ported by Leaming's false denials that he had made an agreement

with Mc¥Fnight and that he had refused to permit another attorney,

Mr. Kelly, to accompany Williams from Davenport to Des Moines.

700 F.2d at 1173 (Pet. at Al6-Al7).

B. Under an “objective® view of “good faith," the factors

discussed in the preceding paragraphs and in the Court of Appeals’

opinion lead even more ineluctably to the conclusion that Leaming

@id not act in good faith. As this Court indicated in Harlow v.

Fitzgerald, supra, objective good faith is not established if the

relevant state official eithés »9r reasonably should have

known that his conduct would violate the Constitution. The “ob-

jective” question of whether Leaming in fact knew that his conduct

would violate Williams’ Sixth Amendment rights is at least very

close to (if not the same as) the "subjective" question which the

Court of Appeals asked: whether Leaming believed that his conduct

would violate the right to counsel. Clearly, the answer to the

former question must be the same as the answer to the latter.

Similarly, particulariy in light of Massiah v. United States, it

is clear that Leaming reasonably should have known that inten-

tionally and designedly eliciting as much incriminating evidence

as possible from Williams before he could consult with his attor-

ney, in direct violation of an express agreement with that attorney,

would violate the Sixth Amendment.’

The same result also follows from application of this Court's

holdings in Brown v. Illinois and Dunaway v. New York, supra.

See Division II, supra.

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V. THE RECORD DOES NOT SHOW THAT THE VICTIM'S BODY

WOULD HAVE BEEN FOUND IF RESPONDENT'S CONSTITUTIONAL

RIGHTS HAND NOT BREEN VIOLATED.

The preceding paragraphs demonstrate that the Court of

Appeals’ decision concerning Leaming's lack of good faith was

legally and factually correct. Even if this were not the case,

however, a grant of certiorari would be inappropriate in this case

because . ven if an inevitable discovery doctrine without a good

faith element were applied to the record, the result reached by

the Court of Appeals would be upheld.

In concluding that the victim's body, and the evidence con-

nected therewith, probably would have been discovered “in any

event," the Iowa Supreme Court found (1) that an organized search

for the victim would have extended into Polk County, to the area

where the body was found, and (2) that the searchers would have

seen the body because it was highly visible. 285 N.W. 2d at 262.

Even under a “preponderance of the evidence” standard, '° however,

neither of these conclusions was correct.

A. The Search Would Not Have Extended Into Polk

County, Where the Body was Located.

On December 26, 1968, a group of volunteer searchers under

the direction of Iowa S3ureau of Criminal Investigation (BCI) agents

Ruxlow and Mayer searched Poweshiek and Jasper Counties (both

located east of Polk County) for the victim's body. They discon-

tinued the search at the Polk County border at 3:00 p.m., before

Williams indicated he would take Leaming to the body. At the

suppression hearing preceding the second trial, Ruxlow testified

that he intended to continue the search into Polk County. How-

ever, all of the other eivdence in this record directly contra-

dicts this testimony (which Ruxlow gave after being informed by

the prosecuting attorney that the issue at the suppression hearing

would be whether he would have discovered the body if Williams

had not led the police to 1... «uxlow Depo. Tr. at 30):

10 under United States v. Wade, 388 U.S. 218 (1967), the proper

standard would be “clear and convinci:9g evidence.”

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were about to

complete the planned search. Certainly the prosecution did not

meet its burden of showing, even by a preponderance of the evi-

dence, that the search would have continued into Polk County.

B. Even if the Search Had Extended Into Polk County,

the Searchers Would Not Have Found the Body.

Even if the search had extended into Polk County, the

recor’ demonstrates that the searchers would not have found the

body, for two main reasons:

1. Even if the searchers had left their vehicles to search on

foot, they would not have seen the body, which was completely

hidden under a cover of snow and brush. (See District Court Ex,

1). In finding that the body would have been visible to the

searchers, the Iowa Supreme Court relied on the only two photo-

graphic exhibits then in the record (District Court Exhibits 3 and

5), which the court believed showed the body as it appeared when

the police first discovered it with Williams’ help:

The State also introduced photographs showing the

body as it was actually found. These photographs

show that Pamela Powers’ body would not have been

hidden by the inch of snow which accumulated in the

area in the evening of Secember i6 ... » In addition

the left leg of the body was poised midair, where

it would not have been readily covered by a subse-

quent snowfall.

State v. Williams, supra, 285 N.W. 2d at 262 (emphasis added).

The court apparently based this belief on Ruxlow's testimony at

the suppression hearing that Exhibit 5 showed the body exactly

as it was found. (1977 Suppression Tr. at 42).23

However, additional evidence introduced in the District Court

established beyond question that Exhibits 3 and 5 did not show

the body as it was found, and thus that the Iowa Supreme Court's

belief was incorrect:

1 Mr. Ruxlow's suppression testimony refers to State's Exhibits

C and D. These were introduced in the District Court as Pe-

titioner's Exhibits 3 and 5.

(a) In the habeas corpus proceeding, Ruxlow conceded that

Exhibit 5 was te\.. after the scene had been aitered and snow had

been removed. (Ruxlow Depo. Tr. at 17). Quite apart from this

concession, Exhibit 1 -- which was not available to the defense in

the state court proceedings (Dist. Ct. Tr. at 9-12) == demonstrated

clearly that Exhibit 5 could not possibly show the body as it was

found: While Exhibit 5 shows the body almost completely exposed

to view, Exhibit 1 shows the body completely covered with a blanket

of snow and obscured by brush. (See Appendix, pp. Al, A2, supra).

(ib! The record also demonstrates that Exhibit 3, (the

second photograph introduced at the 1977 suppression hearing) did

not show the body as it was found. After the body was found, @

police officer took a single initial photograph of the body as it

then appeared. After this first photograph was taken, the body

was moved and the scene was altered. (Ex. 13 at 189; 1977 Sup-

pression Tr. at 22-23). Exhibit 1, in which the body is virtually

indiscernible, must be the single initial photograph. Thus, all

the other photographs were taken after the scene had been disturbed.

. The preceding paragraphs show that it is unlikely the body

would have been discovered even assuming that searchers would have

left their vehicles in the area where the body sas located. The

record shows, however, that this assumption is unwarranted. Rux-

low testified that the searchers generally searched from their

vehicles; if they saw a “culvert or any out-building of an aban-

doned farm,” they were supposed to get out of their cars. (1977

Suppression Tr. at 47-48). District Court Exhibits 7, 8 and 9

were photographs taken from the road approaching the culvert

where the body was located. Although all of these photographs

show the location of the culvert, it is not visible in any of

them. The searchers therefore would not have left their cars to

search, and would not have found the body even if it had been more

Visible than Exhibit 1 shows it was. !?

VI. THIS is NUT AN APPKOPRIATE CASE PUK tx EXTENSION

OF STONE V. POWELL OUTSIDE THE FOURTH AMENDMENT

CONTEXT.

The State's final argument for the granting of certiorari

is that this case “raises the applicability of the doctrine of

Stone v. Powell, 428 U.S. 465 [(1976)], in a non-Fourth Amendment

context” (Pet. at 13), and that Stone v. Powell should be extended

to preclude litigation of the Sixth Amendment violations at issue

in this case (Pet. at 13-16). This argument is without merit,

for two independently sufficient reasons: (A) the rationale of

Stone v. Powell plainly does not apply to Sixth Amendment vio-

lations, especially those committed in bad faith; and (B) even

if Stone v. Powell were applied to the instant case, it would not

bar federal-court review of Williams’ federai constitutional

claims on their merits.

A. The Rationale of Stone v. Powell Does Not

App.ay to This Case.

In Stone v. Powell, supra, this Court held that a state

prisoner who had been afforded a full and fair opportunity to liti-

gate Fourth Amendment exclusionary-rule claims in the state courts

Since the conclusion that the State did net demorscrate that

the body would have been discovered in the absence of the

violation of Williams‘ constitutional rights is contrary to

that reached by the Iowa Supreme Court, some brief attention

to 28 U.S.C. §2254(d) is appropriate. Normally, state court

factual findings are entitled to a presumption of correctness

in a federal habeas corpus proceeding. 28 U.S.C. §2254(d);

Sumner v. Mata, 449 U.S. 539 (1981). However, this presumption

of correctness does not apply when “the material facts were not

adequately developed at the state court hearing” or when-the

petitioner “did not receive a full, fair and adequate hearing

in the state court proceeding . .. .* 28 U.S.C. §$2254(d) (3),

(6); Townsend v. Sain, 372 U.S. 293 (1963). Given the ad-

ditional evidence presented in the District Court, both of

these exceptions apply. Most importantly, Exhibit 1 and Rux-

low's new testimony made it clear that the Iowa Supreme Court

had relied on false and highly misleading testimony in finding

that the body was visible. Moreover, the state courts were

not presented with District Court Exhibits 7-9, 11, 12, or

16 -- all of which indicated that the victim's body would not

have been found,

could not relitigate those claims in a federal habeas corpus

proceeding. This holding was carefully limited to its Fourth

Amendment context, and was based on the fact that the primary

justification for applying a judiciaily-created exclusionary

rule to Fourth Amendment violations is the general deterrence of

future violations of the Fourth Amendment by law enforcement

officers. 28 U.S. at 479, 4186. The Stone opinion specifically

noted the very limited role of the “imperative of judicial in-

tegrity” in Fourth Amendment exclusionary rule cases, 428 U.S.

at 484-85, and made it c)»ar that in the context of the Fourth

Amendment, the exclusionary rule “is not a personal constitutional

right” that is calculated to redress injury to any particular

defendant in relation to the criminal judicial process. Rather,

“the rule is a judicially created remedy designed to safeguard

Fourth Amendment rights senerally through its deterrent ef-

fect... .” 414 U.S. 338, 348 (1974).

Given the primarily deterrent purpose of the Fourth Amendment

exclusionary rule, permitting relitigation of Fourth Amendment

claims in a federal habeas corpus proceeding after a full and

fair opportunity to litigate those claims in state court is not

justifies because the incremental deterrent effect of doing so, if

any, is small. 428 U.S. at 493. As this Court's opinion in

Stone v. Powell itself indicated, however, denials of Fifth and

S xth Amendment rights are different in kind from Fourth Amend-

ment violations in that they directly impugn the integrity of the

judicial process. 428 U.S. at 479. One serious difficulty with

this case is that it relies on assertions that the “alleged [sic]

constitutional violation occurred at the time of arrest and prior

to indictment and the commencement of trial."* (Illinois Amicus

Brief at 4, 9). These assertions may be technically accurate; but

they ignore the fact that this Court already has held that the

Sixth Amendment violations inp this case occurred after the com-

mencement of judicial proceedings, 430 U.S. at 398-399 (as Sixth

Amendment violations must, see Kirby v. Illinois, 406 U.S. 682

(1972)). Once judicial proceedings have commenced, even at the

pretrial stages, the Sixth Amendment right to the assistance of

counsel of course “is ifdispensable to the fair administration

of our adversary system of criminal justice.” 430 U.S. at 398.

Thus, unlike the Pourth Amendment, the Sixth Amendment does

protect “personal constitutional rights,” and Sixth Amendment

violations directly affect the judicial process in a manner that

makes inappropriate the extension of Stone v. Powell to such vio-

lations. >? This is especially so with regard to bad faith Sixth

Amendment violations, which strike with particular force at the

inteqrity of the judicial process.

This conc)usion is supported by the post-Stone decisions of

this Court and of the Federal circuit courts. In Rose v, Mitchel

443 U.S. 549 (1979), this Court declined to extend Stone beyond

the Fourth Amendment to a claim by state prisoners that their

convictions should be overturned because of discrimination in the

selection of grand jury foremen -- even though this claim did not

implicate the integrity of the fact-finding process by which they

had been found guilty. Reaffirming the "limited reach of Stone,”

443 U.S. at 560, this Court noted that Rose involved a claimed

violation of personal rights, and that the “judicial integrity"

concerns and constitutional interests were more compelling than

in Stone because the claimed violations struck at “core concerns

of the Fourteenth Amendment and at fundamental values of our so-

ciety and our legal system." 443 U.f. at 563, 564. As noted

previously, the instant case similarly involves violations of

i3 Since the Fifth Amendment explicitly prohibits the use of com-

pelled testimony in criminal proceedings, violations of the

Fifth Amendment also directly implicate the integrity of the

lL,

judicial process. In this connection, it should be noted that

the District Court in the first habeas corpus proceeding held

that Williams’ Fifth Amendment rights were violated, in two

respects. 375 F. Supp. at 179-184. This holding has never

been reversed.

_——

personal rights that strike at fundamental values of the adversary

cystem,.

Consistently with Rose, every federal circuit court faced

with the issue has declined to extend Stone v. Powell to Fifth and

Sixth Amendment claims. See, e.g., White v. Finkbeiner, 687 F.2d

865 (7th Cir. 1982); Hinman vy. McCarthy, 676 F.2d 343, 348-49

Warden, 624 F.2d 69, 70 (9th Cir. 1980); Harryman v. Estelle,

616 F.2d 870, 872 (Sth Cir. 1980), cert. denied, 449 U.S. 860

(1981); Morgan v. Hall, 569 F.2d 1161, 1168-69 (lst Cir.), cert.

denied, 437 U.S. 910 (1978).

A few final words regarding the applicability of Stone v.

Powell to the Sixth Amendment violation in this case are necessi-

tated by the assertion by the amici that Williams’ guilt “was not

in question” (Illinois Amicus Brief at 9). Quite apart from the

fact that nothing in Stone would suggest that the apparent guilt

of a defendant by itself would preclude federal habeas corpus

review of bad faith Sixth Amendment violations, the suggestion of

the amici that Williams’ guilt was not questioned simply is not

factually correct. Although Williams' guilt may have appeared

Clear on the record from the first trial, see 430 U.S. at 428,

437, 441, the Court of Appeals specifically noted that at the

second trial, Williams' defense -- that someone else killed the

victim and placed her body in his room -- was supported by sub-

stantial physical and scientific evidence indicating, inter alia,

that the perpetrator, unlike Williams, was sterile. 700 F.2d at

’

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District Court demonstrated that the Iowa Supreme Court, in con-

eluding that the Stare had satisfied its hynothetical inevitable

discovery test, relied on evidence that was seriously misleading.

Since the failure to present this additional evidence to the state

courts was excusable, the Iowa Supreme Court's misapprehension of

the facts rendered its consideration of the suppression issue less

than "full and fair." Consequently, whether Stone v. Powell

should be extended beyond its Fourteenth Amendment context is a

moot issue in the instant case, and this Court therefore should

not consider it.

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be denied.

RORERT BARTELS 2s

College of Law

Arizona State University

Tempe, Arizona 85287

(602) 965-7053

Counsel for kespondent

Certificate of Service

The undersigned hereby certifies that he received the

petition for a writ of certiorari in this case on April 12,

1983, and that on the 2% aay of May, 1923, he deposited one

copy of the foregoing document in a United States Post Office,

with first-class postage prepaid, and addressed to counsel for

the petitioner:

Mr. Brent R. Appel

Deputy Attorney General

Hoover Office Building

Des Moines, Iowa 50319

The undersigned further certifies that all parties required. to

be served have been sexved.

ROBERT BAPTELS

Sen

RECEIVED

NO. 2>-fel MAY 1 6 1963

siaitiemeancetaatiiaiamiaieiss OFriCe OF ime Coca

sUPrEME COURT, YS

. . . = veneer nasmud

ctober Term, 1982

— . .

Nik, waracen f the lowa

a t > “e lary,

Petitioner,

VS.

- . ‘ se ‘auc

ANTHON ". LAMS ,

4 ” tenet.

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M N ‘ eS ee oe

N FORMA PAUPERIS

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The res} jent, bert Anthony Williams, wno 18

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mn ¢ ne.~aG if s wa H t ee tiatzt at rort Madison, ,Owa,

hereby asks leave to proceed in this action in forma pauperis

spondent was permitted to proceed in forma

superis with appointed counsel in tne District Court and the

JOOBA(G) (6).

ROBERT BARTELS

Sollege of Law

Arizona State University

Tempe, Arizona 85287

(602) 965-7053

Counsel for Pespondent

Certificate of

Service

petition for a writ of certiorari

1983, and that on the [7% day of

copy of the foregoing document in

with first-class postage prepaid,

the petitioner:

Mr. Brent R. Appel

Deputy Attorney General

Hoover Office Building

Des Moines, Iowa 50319

The undersigned further certifies

oe served have been served.

The undersigned hereby certifies that he received the.

in this case on April 12,

May, 1983, he deposited one

a United States Post Office,

and addressed to counsel for

that all parties required to

is J

ROBERT BARTELS

Saal

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.