BREWER v. WILLIAMS
Legal provision: Right to Counsel
Argument of Richard N. Winders
Chief Justice Warren E. Burger: We will here at arguments next in 74-1263, Brewer against Williams.
Mr. Winders, you may precede when you are ready.
Mr. Richard N. Winders: Mr. Chief Justice, may it please the Court.
My name is Richard Winders.
I am an Assistant Attorney General of the State of Iowa.
This case involves the kidnap and rape and murder of a 10-year-old girl in Des Moines, Iowa.
The questions that will be presented, concern whether or not the respondent Williams was deprived of his constitutional rights when he was transported by police officers from Davenport, Iowa to Des Moines, Iowa.
During that trip Williams made self incriminating statements and ultimately led the police to the body of the little girl.
Williams was convicted of first-degree murder by a Jury Verdict in Polk County, Iowa.
His conviction was affirmed by the Iowa Supreme Court in a five to four decision.
Williams petitioned for a Writ of Habeas Corpus in the Federal District Court of Iowa, that petition was sustained by the Federal District Court Judge Hanson.
We appealed to the Eighth Circuit and in two to one decision, Justice Webster dissenting; Judge Hanson’s opinion was affirmed.
Our petition for rehearing en banc was denied although three Justices had voted to hear it.
In 1968, on the day before Christmas, Pamela Powers accompanied her mother to the YMCA in Des Moines to watch her brother participate in a wrestling match.
They arrived about noon.
Pamela got some candy and then remembered that she should wash her hands and asked her mother, if she should go to the washroom.
Her mother gave her that permission.
Pamela left, she never returned and was never seen alive again.
The respondent Williams was a resident of the YMCA and about 1:00 or 1:30, he was seen hurrying through the lobby of the Y carrying a large bundle wrapped in a blanket.
He got outside and asked a young boy if the boy would open the car door for him.
The boy did, Williams threw the bundle inside and the boy testified at trial there were two skinny white legs in it.
YMCA personnel tried to stop Williams, but he pushed them aside and locked doors at the car and drove away.
Two days later on the morning of the 26th of December, Henry McKnight, a lawyer in Des Moines came to the Des Moines police station and advised officers there that Mr. Williams had phoned him from Moline, Illinois and Mr. McKnight said that he advised Williams to surrender in Davenport, Iowa which is just across the river.
Williams did surrender in Davenport at approximately 9 o’clock.
He was arrested and given his Miranda warnings by a Lieutenant Ackerman.
He telephoned McKnight who was in Des Moines police station and McKnight’s end of the conversation with Williams was overheard by chief of police Nichols and also Officer Claudius Leaming.
McKnight told Williams among other things that Des Moines police officers would come and pick him up, that they would not grill him, they would be nice to him and they let no harm to him and they would talk it over in Des Moines.
They further told Williams that you have to tell the police where the body is, you are going to have to tell them.
He ended this conversation by saying, well, it makes no difference.
You come back to Des Moines, tell me, I will tell them, I am going to tell them the whole story.
Judge Zinato (ph) of the Polk County District Court in a suppression hearing found that from that conversation that there was an agreement existing between the police and Mr. McKnight that no questions would be asked of Williams on his way back to Des Moines.
He found this even know both chief of police Nichols and officer Leaming denied the existence of the agreement.
Leaming and Officer Nelson went to Davenport to pick up Williams.
They arrived around noon.
In the meantime, Williams had been taken before a Municipal Court Judge arraigned in a fugitive warrant and for the second time given the Miranda warnings by the judge.
He was also granted a private conversation with the judge in chambers.
As he was leaving, he noticed individual in the courtroom and asked if the man was a lawyer.
It was a Thomas Kelly from Davenport and Williams was allowed to talk to him in private for about 40 minutes.
Leaming first saw Williams at approximately 1 o’clock on that day.
He for the third and last time gave Williams the Miranda warnings.
He also stated to Williams, now I want you to understand that you are represented by Mr. Kelly here in Davenport and by Mr. McKnight in Des Moines.
Williams acknowledged that he understood that.
Leaming further stated that I want you to remember what I have told you here because we will be visiting on the way back to Des Moines.
They left about 2 o’clock.
Leaming testified both at the suppression hearing and trial that shortly after they left, Williams started asking him questions.
He asked about the police procedures whether they had searched for fingerprints in his room, whether they had searched friends of his.
They also had further discussion pertaining to religion, church groups singing in that type of thing.
Leaming testified further that he made a statement to Williams shortly after they got on a freeway outside of Des Moines.
He stated to him, I want you to observe the weather conditions.
It is raining and freezing, it is going to snow tonight.
You yourself are the only person that knows where this little girl’s body is, and you have only been there once.
I think we will be going right by the area where the body is.
I feel that we should stop and locate the body on the way to Des Moines rather then waiting and coming back because you may not be able to find it.
The parents of this little girl deserve a Christian burial for the girl that was snatched away from them.
Williams asked him why he felt they would be going by the area and Leaming replied to him, I know it is in Mitchellville area, I do not know where, but I know it is there.
Leaming ended this conversation by telling Williams, I do not want you to answer me.
I do not want to discuss it any further.
Just think about it as riding down the railroad.
Williams further stated to Leaming and according to Leaming that also for the first time, shortly after leaving Davenport on the freeway that Williams told him when I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story.
They proceeded on interstate and shortly before they got to Grinnell ascent, William spontaneously volunteered a question to Leaming, where did you find the little girl’s shoes.
Unknown Speaker: Mr. Winders, how far is it from Davenport to Des Moines?
Mr. Richard N. Winders: Your Honor, it is approximately 163 miles.
Unknown Speaker: I am sorry, but Grinnell?
Mr. Richard N. Winders: Grinnell is approximately 60 miles from Des Moines, so it would be roughly a 110-120 miles.
Unknown Speaker: Mr. Winders is it correct that Mr. Leaming statement that he knew the body was in the area, whatever it was, was a false statement?
Mr. Richard N. Winders: Your Honor, the testimony is conflicting.
Williams or Leaming stated that he had a theory if the body was in the Mitchellville area and Williams at the suppression hearing also stated that, so he had been told by Leaming that they speculated the body was in the Mitchellville area.
So it was not exactly a lie.
It was more of a theory.
Unknown Speaker: Well, it was incorrect that he knew.
Mr. Richard N. Winders: Well, he did not absolutely know.
No, only Williams…
Unknown Speaker: So that was a false statement.
Mr. Richard N. Winders: Well, he did not know for sure absolutely.
It was his theory Your Honor.
Unknown Speaker: State’s position as to why he made the statement, if it was not for the purpose of try to in effect interrogate the defendant?
Mr. Richard N. Winders: Well, Your Honor, we would not call an interrogation but we do concede and the testimony has fairly certain that Leaming wanted to find and locate the little girl before they got to Des Moines and midnight, he stated of that.
Unknown Speaker: Or more narrowly would it be correct to say that he wanted the defendant to reveal the whereabouts of the child?
Mr. Richard N. Winders: I think you could say that and it is the same thing, I think, Your Honor.
After they searched for the shoes…
Unknown Speaker: The seven minutes that you indicated you wish has been consumed.
Mr. Richard N. Winders: Alright, Your Honor, thank you.
I will then surrender my position to the Attorney General of the State of Iowa, Mr. Richard C. Turner.
Chief Justice Warren E. Burger: Mr. Attorney General.
Argument of Richard C. Turner
Mr. Richard C. Turner: Mr. Chief Justice and May it please the Court.
If it would be helpful to the Court, I could pass up to the Court some official Iowa highway roadmaps, which might eliminate the distances and I have extra copies here.
Unknown Speaker: I think we have atlases available if we need to check that counsel.
Mr. Richard C. Turner: When I found out we had only a half hour to argue this, I felt like the poor guy that sat down in one night near income tax time to do his income tax return and reading the instructions that it will only take the average tax payer a half hour and he said to himself oh! My Gosh it will take me longer then that to find my wife’s social security number.
But the facts in this case are very important of course and I think perhaps we should examine them further and Mr. Winder said that it was shortly out of Des Moines that he made this Christian Burial statement.
It was actually, I think he must have spoken very shortly after leaving Davenport or entering on to the highway.
Now, the highway was IS, even the defendant testified to this, it was sleeting, it was cold, and the predictions for that night were for snow and he did tell this man to induce him and knowing I think that he was a religious man, and even he even called him, in the suppression hearing, he said he called him reverend.
He did, he wanted to induce the man to tell him where Pamela Powers’ body was and in fact he did not really know that was in Mitchellville area and he did not for that matter really know that she was dead for a fact.
There was anything really in the record at the that stage, but he is suspected that she was and I do not think it is a fair characterization to say that he really lied, but he told him right then and I said I do not want to discuss it further, I want you to answer me.
Now, as they rode down the highway, it was nearly about 20 miles from Davenport to Grinnell.
I can exactly show on these maps.
It is on the Interstate 80, right through Iowa and the Grinnell was a turnoff a few miles and when they reached that intersection at that point, Mr. Williams voluntarily and spontaneously volunteered that did you find her shoes and they said, well, they said, I, he knew, the Officer knew that they had found the little girl’s clothing, but he did not know, or he had not seen, he did not know what it consisted off and he said that if the shoes were with the clothing where we found it.
Well, he said pull in here and he indicated, then they went into a gas station and they looked behind the gasoline station into a box where he said he had disposed of a pair of brown boots and they did not find them.
They were never found.
They drove on then, continued on the highway after having a cup of coffee there, I think, they drove on and a few miles further they came to rest stop and he said, did you find the blanket, and he said well, it was with the clothes we found it and he said well pull off here, I disposed the blanket in the different place than I put the cloths.
So they have drove in there and they looked for the blanket, that the blanket had been found.
Then they drove on, the cloths have been found, they drove on and as they got the Mitchellville which is one of the very first exits outside of Des Moines and I think this led to Officer Leaming’s theory.
He theorized that I think that and inferred he would, the murderer would want to dispose the body as quickly as possible, and that he would turn off as soon as he could.
It was not a very first place he could have turned off, that was really in Des Moines, but this is a very first place outside of Des Moines.
As they approached this place, he said turn off here, I will show you where the body is and they did turn off and he took them up wrong road at first, he was a mile off on that, but after a couple of tries they went and located the body right where he said it would be.
And he asked the officer about the little girl’s face and some things like that that are in the record.
The girl’s body was clad only in a T-shirt, otherwise she was naked.
She had been sexually ravaged, semen was found in her vagina, rectum and mouth and she died of strangulation according to the reports.
Now, of course when they got back to Des Moines, and then Mr. McKnight was quite angry, the lawyer was waiting there.
Indeed while it was found by the trial court in the suppression hearing by Judge Denaro who tried this case as the judge that there was an agreement.
I submit to you that you will find on a careful examination of the record that Leaming, neither Leaming nor Nichols, nor any other officer agreed to anything.
Unknown Speaker: Is that sort of an agreement enforceable as if it were a contract under Iowa Law?
Mr. Richard C. Turner: I should think not Your Honor.
If assuming that there was an agreement, it would not, to me be enforceable, it would violate the person’s sense of fair play.
Unknown Speaker: But it could raise constitutional overtones, but I would not be surprised if any state as a matter of public policy would say, you treated just like you would a contract to buy some potatoes.
Mr. Richard C. Turner: I think too Your Honor that you would not treat it the same way that you would treat an agreement between defense counsel and the prosecuting attorney.
I think those kinds of agreements should be honored, but assuming that Leaming agreed which we do not and…
Unknown Speaker: I thought we had to expect that there was an agreement.
Mr. Richard C. Turner: Your Honor, perhaps we do.
Unknown Speaker: Whatever that means as my brother Rehnquist said it might not be…
Mr. Richard C. Turner: He raised that in a previous case and perhaps…
Unknown Speaker: We just ask you this question, am I mistaken in believing that the trail judge in your state found that there was an agreement?
Mr. Richard C. Turner: He did.
Unknown Speaker: On Habeas Corpus, on federal habeas corpus this was submitted by stipulation between the parties on the trail record and if the District Court accepted the fact if there was an agreement, and therefore, that we have to accept that as a fact in this case.
Am I mistaken about that?
Mr. Richard C. Turner: Well, Your Honor, I know the rule on that actually I think…
Unknown Speaker: Well the answer is yes or no?
Mr. Richard C. Turner: No, I do not think you absolutely need to accept.
The record is complete and if and I think it is and if there is absolutely no evidence that Leaming or Nichols or anyone agreed to anything, they urged this conversation, certainly they urged this one sided.
Now, from then he found that there was an agreement.
Unknown Speaker: And so did the Federal District Court, is it not?
Mr. Richard C. Turner: Well, the Federal District Court did so, on the basis that it was bound by the finding of the trial court.
Unknown Speaker: Well, this could be a way that it should make its finding on, do you not?
Mr. Richard C. Turner: Yes sir.
Unknown Speaker: How did the Supreme Court of Iowa treat that point?
Mr. Richard C. Turner: They too found that there was an agreement, I believe.
Unknown Speaker: So, as the record stands now everybody agrees there was an agreement but you…
Mr. Richard C. Turner: Well, Your Honor.
Unknown Speaker: Is that right?
Mr. Richard C. Turner: That is correct, but I stand here -- that is true.
I plead with the Court to consider the record itself on this point and I think that Section 2254 has authority, and therefore, this Court to do that, where there was an absence of this.
Unknown Speaker: Mr. Attorney General if we are bound by the finding that there was an agreement, what is your view as to whether or not it was broken by the questions that were asked by officer Leaming?
Mr. Richard C. Turner: Well, Your Honor, Officer Leaming testified and he was un-contradicted that he did not really ask any questions.
He made this Christian Burial statement and he said I do not want you to answer me.
Now that may be considered to be that is going to be your question for this Court to decide whether that constituted interrogation or a psychological ploy.
Unknown Speaker: I think you indicated earlier that the Officer was anxious by the questions he asked to lead Williams into stating where the body was located, did you not?
Mr. Richard C. Turner: Yes he was and he made a statement for that purpose.
Unknown Speaker: Would you regard that as interrogation?
Mr. Richard C. Turner: Well, it was not interrogation in the customary sense of thinking of interrogation has been questioning.
Unknown Speaker: You mean he had not been put under the oath at that time.
Mr. Richard C. Turner: Well, he had not asked him a question.
He simply stated the fact.
He said I want you to observe the weather conditions.
I want you to notice that its snow, that it is sleeting, the roads are icy and so on and he said I think that the even if the snow covers her body, you would not be able to find her body and her parents deserve did a Christian Burial.
Unknown Speaker: But it is not implied really Mr. Attorney General what you indicated earlier and that is that the officer wanted to elicit information for Williams.
Mr. Richard C. Turner: Yes sir.
Unknown Speaker: Whatever techniques he used, I would suppose a lawyer would consider that he was pursuing interrogation.
Mr. Richard C. Turner: It is, but it was very brief.
We claim there was no agreement not to do it, but even if there was, he was not bound by any such agreement, really as an officer of law; he is a police officer anyway.
Unknown Speaker: But you do concede…
Mr. Richard C. Turner: This was volunteered two hours later.
Unknown Speaker: Do not you concede though Mr. Turner if it had been a prosecuting attorney who made assuming it was an agreement that he would be bound?
I think you conceded that earlier.
Mr. Richard C. Turner: So matter of ethics, he would be Your Honor.
I do not know that it was…
Unknown Speaker: Well it was a matter of ethics as so as police officers bound, but what significance do we attach ethics in this.
Mr. Richard C. Turner: Well, I think the Court’s attach it.
Unknown Speaker: Let me rephrase the question.
Would it make any difference in the outcome of the case, if “A” there has been an agreement, undoubted and “B” it had been made by the prosecuting attorney rather than a police officer.
Mr. Richard C. Turner: Perhaps, because yes…
Unknown Speaker: That your position depends on the fact that it is a police officer rather than prosecuting attorney.
So I am trying to…
Mr. Richard C. Turner: In a plea bargain, for example the Courts have held that the prosecuting attorney is bound and later set aside his agreement and I think yes, but not; the law has never extended to a police officer in this regard.
Unknown Speaker: What is the sense of having a lawyer?
If you cannot have a lawyer to make an agreement to for you to protect you.
Mr. Richard C. Turner: Well, I have not conceded there was an agreement, but even though you have a lawyer, you say that this is your life to the lawyer even a trial, the Court has held that in the Faretta case.
Unknown Speaker: When did he waive his right to the lawyer?
You got a waiver and everything else, did he waive that too.
Mr. Richard C. Turner: I think he did.
Unknown Speaker: When?
Mr. Richard C. Turner: As he drove down, as he approached Grinnell.
Unknown Speaker: Did he say anything about lawyer or waive?
Mr. Richard C. Turner: Well, in the first place he called Mr. McKnight.
He invoked his right to a lawyer.
Unknown Speaker: But did he say anything about waive?
Mr. Richard C. Turner: No, and it is no required under the cases.
There is no requirement of an express waiver.
I think the Brown…
Unknown Speaker: Is the man going for one lawyer and he asked the lawyer go along with him, he is on his way to another lawyer and in between the two lawyers, he waives lawyer.
Mr. Richard C. Turner: Well, there is another dispute in fact is to whether that Mr. Kelly asked…
Unknown Speaker: Well, why not assume that this is disputed?
Mr. Richard C. Turner: It is disputed Your Honor.
Unknown Speaker: It is disputed.
Mr. Richard C. Turner: It is disputed and the trial judge did not make any finding on that point of lawyer.
The trial judge did not find, the judge Denaro did not find…
Unknown Speaker: He needs too because he found that there had been in an agreement.
Mr. Richard C. Turner: You mean to go along, to ride along in the car.
There are had not been any agreement that he ride along in the car.
Unknown Speaker: He said he could not.
The police said he could not.
Mr. Richard C. Turner: It is disputed whether he was asked Steven to ride -- was he not asked to right along in the car.
Unknown Speaker: Mr. Attorney General, I think the peer was knowing, that you are not allowed to ride in a police car with a prisoner.
Mr. Richard C. Turner: Yes sir.
Well, Judge Hanson placed great emphasis on the fact that Kelly asked to ride along and was not allowed to do so.
Unknown Speaker: Yeah, but when did he waive his lawyer, he was still on this (Inaudible) the record that has waived.
Mr. Richard C. Turner: He never said, expressly said that I waive.
He merely volunteered…
Unknown Speaker: Anything he said that anybody can interpret that waive…
Unknown Speaker: Did you find her shoes?
Unknown Speaker: And what did he say?
Oh! He said you did not find the shoes; that is a waiver of lawyer.
Mr. Richard C. Turner: Yes, I think it is.
It is a waiver and his Fifth Amendment rights as well.
Unknown Speaker: Absolutely asked for a cup of coffee that would have been a waiver.
Mr. Richard C. Turner: When he directed the officers to go to look for the shoes, he waived his right to counsel while going to look for the shoes and he did the same thing when he went to look for the blanket and again when he went to look for the body.
Unknown Speaker: And when did it get it low as that.
Mr. Richard C. Turner: When he got to Des Moines.
You see he started off.
He knew his rights.
Unknown Speaker: That is one of these often --
Mr. Richard C. Turner: Yeah, perhaps, he knew his rights.
He called his lawyer to start with and he also sought out and got Mr. Kelly and he had a lawyer in fact, but he did not talk to Mr. Kelly once but he talked to him twice and both of his lawyers warned him, do not talk to the officers, do not tell them anything.
There is no dispute about that, but nevertheless he did, and I say that he had that right and he did not have to stop and say, now there is something I want you gentlemen to know.
I am going to temporarily waive my right to counsel, that is absurd, he does not have to do that.
Unknown Speaker: He waives that by talking, is that what you are telling us.
He waives the right to the advice of counsel by what he says on the on the subsequent aspects of the crime.
Mr. Richard C. Turner: Yes, I think he does, and in fact, I think the cases hold that no express statement of the waiver is required that he can simply waive it by proceeding and without his counsel.
A waiver is simply a knowledgeable relinquishment of a known right.
That has been held by this Court and that is what he did.
He had a right to counsel and he knew that right and he waived that right.
Well, of course -- I might need --
Unknown Speaker: Would it not be more accurate to say in this context that he knew he had a right not to speak, not to speak to the officers about anything relating to the crime and he had been told that by several police officers and several lawyers and that that is the known right that he waives, the right not to speak?
Mr. Richard C. Turner: I think he waived both at that point, because he had already had a lawyer.
He waived both his right not to speak and his right to counsel, both which rights he knew, no question about it, he admitted he knew them.
Unknown Speaker: Mr. Attorney General, how do you distinguish the Escobedo case in which Judge Hanson relied so heavily?
Why would not your argument equally apply to Escobedo going and talking if his lawyer was unable to?
Mr. Richard C. Turner: Well, in Escobedo in the first place, I think there were no warnings.
Escobedo was asking to see his lawyer, but was denied to right to see his lawyer.
Unknown Speaker: That is what judge Hanson found happened here too.
Mr. Richard C. Turner: But in this case he…
Unknown Speaker: Is the distinction that you disagree with the finding or, let me ask you this way.
Assume that finding number 11 is correct that the lawyer in Des Moines or Davenport asked to ride alone, but it was refused permission.
Mr. Richard C. Turner: The finding was that he had said that he would wait and tell them the whole story when he got to Des Moines and talk to his lawyer.
Unknown Speaker: Let me make sure you understand my question.
The finding that I am referring to reads as follows.
Before detective Leaming left for Des Moines with the petitioner, Mr. Kelly asked detective Leaming that he be permitted to ride along in the police car to Des Moines.
This request was refused by detective Leaming.
Now, assuming that it is a correct finding and I understand you do not accept it because it was not made by the state trial judge, assuming that is a correct finding, how do you differentiate the Escobedo case or can you?
Mr. Richard C. Turner: Well, I think I can, yes because in the Escobedo case even or in any case, the lawyer has no right to ride along or to get into the jail cell or anything.
The client has right at appropriate times to talk to his lawyer, but that does not mean the lawyer has to live within, and in this case it did not mean when he said, when I get to Des Moines, I will tell you the whole story, that he would not talk in absence of his attorney.
That is what Judge Hanson, the federal court determined that he meant by saying that he would not talk in absence of his attorney, but that is what he said, he said when I get to Des Moines, I will tell you the whole story.
Unknown Speaker: Well, may I ask you a question.
Your brief of course was filed in February.
The four hour decision in Stone against Powell came down.
This is a habeas action as it comes here.
Have you given any consideration as to whether the underlying philosophy of Stone against Powell would have application here?
Mr. Richard C. Turner: Yes sir, I think it would.
In the Stone against Powell, that was a Fourth Amendment case in and I think Mr. Chief Justice Burger noted that there was a strong circumstantial probability or reliability between you find the goods or the body or something in a search and here there is a strong circumstantial probability or reliability in his statement, in the honesty and the truth of his statement, when he took the police to the body and I think here where there has been a full hearing and these rights have been adjudicated by the trial court, that the trial court and the Supreme Court of Iowa are at least in the equally as good position to make the decision as would be Judge Hanson or would be the Federal Circuit Court of Appeals, and that therefore, the Stone versus Powell should be extended here and that this case should be denied on that ground alone, but then of course we ask here that the court overturned its decisions in the Miranda case that you cannot use psychological ploys or subtle interrogation or cajolery.
We think that the historical basis of the Miranda case and the area of the Fifth Amendment privilege against self-incrimination was not that type of conduct.
Unknown Speaker: May I ask you this is as you know the very threshold point that your adversary makes is that there was a finding on this case that the respondent statement was a matter of fact and as matter of law involuntary and that that finding has not been challenged and if That is true then all this talk of Miranda and Escobedo and everything else is wholly irrelevant because that would decide this case and that was a factual finding, that was affirmed on appeal and its not been challenged by you in this Court.
Now, I have read you reply brief, but frankly you got anything else to say in answer of that basic proposition beyond what you said in your reply brief.
Mr. Richard C. Turner: No, I think I reply brief handles that.
That is a big yoke that you put and further he did not raise that in the challenging the petition for a Writ of Certiorari or resisting it anyway.
Unknown Speaker: No, it is you who petitioned this Court to upset the judgment of the Court of Appeal and if that judgment rests upon a claim, rests upon a foundation that you have not challenged then it should be affirmed on that foundation.
Mr. Richard C. Turner: We contend that we have challenged that Your Honor throughout our argument on Miranda and…
Unknown Speaker: Well, Miranda does not have anything to do with voluntariness at all, in fact that is the volunateriness in fact in everything that triggered the case
Mr. Richard C. Turner: Repeatedly through our argument we say that his statements were voluntary, there is no evidence.
Unknown Speaker: That you say so, but there is been a finding of the contrary that your opponent says you have never attacked.
Mr. Richard C. Turner: Well, Your Honor I can say the case is indicated that this Court can and that type of situation where these questions are the very foundation of the whole matter consider those things, even know they were not specifically raised and we have cases cited in our brief to that effect.
Unknown Speaker: And you have nothing to say beyond what you said in your reply brief to that on this question.
Mr. Richard C. Turner: Not at the moment, but I think we have fully answered it on three different aspects.
Unknown Speaker: Right, thank you.
Chief Justice Warren E. Burger: Mr. Bartels.
Argument of Robert Bartels
Mr. Robert Bartels: Mr. Chief Justice, may it please the Court.
As the briefs in this case indicate, there are a number of constitutional problems that are raised by the record, and I would like to focus on what is the central and most serious problem, I think the one that Court has been dealing with so far primarily, and that is the deliberate and repeated efforts by the Des Moines police officers to deprive the defendant of the assistance of this counsel during an interrogation about the crime, the very crime with which had been charged, formally charged.
Now, this interrogation took place as Mr. Turner and Mr. Winders have indicated on the automobile trip from Davenport to Des Moines.
I think perhaps I ought to come back and emphasize certain facts that existed and that everyone knew before the automobile trip begin and before the interrogation took place.
First, the police fairly knew that the defendant had retained an attorney, Mr. McKnight to represent him with regard to the charges he was facing and indeed that Mr. McKnight had himself arranged to have the defendant surrender in Davenport.
Secondly, the police had been informed through counsel that the defendant did not wish to be questioned or to provide any information during the return trip to Des Moines.
Unknown Speaker: Now, you say that that is forever irrevocable?
Mr. Robert Bartels: No, Your Honor though I can conceive of circumstances in which the defendant could clearly state that he had changed his mind about that, where that he was rejecting his Attorney’s advice about that, but there is nothing even remotely resembling that in this.
Unknown Speaker: Other way about the rights of the defendant, not the rights of the lawyer.
Mr. Robert Bartels: That is correct Your Honor and I guess that brings me to the agreement.
The agreement that the state trial court and Judge Hanson both found existed between the defense counsel, Mr. McKnight and the police to the effect that the defendant would not be questioned during this return trip to Des Moines.
Now, there is clearly a considerable amount of support in the record for the trial courts findings, particularly on pages 3 (a) and 39 of the appendix, the testimony of Chief Nichols, effectually concedes that there was an agreement.
At one point, on page 39, Mr. McKnight says, now did not you say when we found out and they had stopped to find the body that you hoped that they had not questioned him and had not stopped to find the body because we agreed that would not be done, and chief Nichol says, I may have said that.
And detective Leaming denies the agreement, but there Your Honor the trial court specifically expressed doubts about detective Leaming’s candor with regard to the agreement.
I think it is important here to remember that the state trial court got to see the demeanor, both of the witnesses and Mr. McKnight was in a peculiar position.
Unknown Speaker: Let me ask you a question about the treatment of the Supreme Court of Iowa of the Polk County District Courts finding on that point.
The Supreme Court syllabus paragraph 10 refers to it as an alleged agreement and I suppose that there was no occasion for the state to challenge of the finding in the Supreme Court of Iowa, since the District Judge ultimately sustained a guilty verdict, but you do not contend, do you that the Supreme Court of Iowa upheld the finding that there was an agreement.
Mr. Robert Bartels: No, Your Honor I do not think the Supreme Court of Iowa really made any finding either way on that, really relying on the finding of the state trial court, which I guess is the finding really That is referred to in Section 2254 (d), that is the finding on merits of a factual dispute that has the initial presumption of correctness under 2254 (d).
Unknown Speaker: Presumption of correctness and the existence of something called an agreement by all the courts and by the parties.
In the relationship between attorney and client, who is the master and who is the servant?
Mr. Robert Bartels: Well, Your Honor, clearly the and it is my view is that the client is the master and that the attorney is the servant.
So, here Your Honor, the defendant has retained the counsel to represent him and to assist him in dealing with the police.
Now, there is no contention here that there was a commercial contract.
There is no issue of margin but --
Unknown Speaker: It has been argued to some extent as though at were.
Now, taking it for what has been called an agreement or understanding, understanding might perhaps be a better term, would you agree?
Mr. Robert Bartels: Your Honor, I think it is not perfectly clear what the judge Denaro meant by an agreement.
I think he at least meant a mutual understanding between the parties and I think mutually understood that the other party was essentially agreeing to this, that there would be no questioning.
Unknown Speaker: But your client Williams, the defendant in the case, you have agreed is the master or the principle.
He can change agreements made by his agent, can he not by saying on it, now, I want to talk?
Mr. Robert Bartels: Well, he could have done that Your Honor, but he clearly…
Unknown Speaker: Hypothetically I mean --
Mr. Robert Bartels: Hypothetically Your Honor, what could have happened in this trip is that the defendant could have said Mr. Leaming, I want to reject everything my lawyer has done.
I want to reject that agreement.
I want to give up the assistance of counsel.
I want to talk to you and nothing even remotely resembling that happened in this case.
Unknown Speaker: But suppose he had said instead of that, without anything at all he says I want to tell you where the body is because I killed, the only thing wrong with that is…
Mr. Robert Bartels: Your Honor, if that had taken place before what has been referred to as the Christian Burial Speech and a priest then I think there still would be no problem in this case, except perhaps the fact that Mr. Kelly was denied permission to go long in the squad car and I think that was probably proper also as long as the police were not going to interrogate while Mr. Kelly was not in the police car.
Unknown Speaker: Had they ridden 120 miles in complete silence and suddenly the defendant had said that he may misbelieve me that I were to tell you.
I know where the body is, I am going to show you, I killed her, and you would not be here, would you?
Mr. Robert Bartels: I assume I would not Your Honor, no.
I do not think there is any problem with that.
Unknown Speaker: I gather then what you emphasize is that Leaming, what he had to say all along, which led finally to the defendant saying what he did.
Mr. Robert Bartels: Yes, Your Honor, the most important piece of interrogation here is the Christian Burial Speech and I think Mr. Turner has conceded really that it was an obvious attempt to induce the defendant to provide this information and it is also quite clear from the record that I guess the reason he succeeded.
The information that was requested was in fact given.
The delay which the Attorney General tries to make something of was exactly what detective Leaming asked for.
There was no information given before the Christian Burial Speech despite all the other conversation that is referred too.
No information given after the defendant returns to Des Moines and sees Mr. McKnight.
Unknown Speaker: Well, what is the objection that you see to the Christian Burial Speech?
Mr. Robert Bartels: I know for one thing it is an interrogation and beyond being interrogation, Your Honor, I think it was a particularly offensive in course type of interrogation because obviously the references the Christian Burial were designed to play on the defendant’s known religious background and this history no long.
Unknown Speaker: What is the matter with that?
Mr. Robert Bartels: Wrong with playing on it?
Unknown Speaker: Yeah, presumably there is a privilege against compulsory self incrimination, but suddenly the law does not frown on incrimination that comes voluntarily.
If a man confesses a crime, we assume, you do not hold it against him.
Mr. Robert Bartels: No Your Honor, but I think the point is that what detective Leaming did and the way in which he made that Christian Burial speech was psychologically coerced and this Court has recognized in the past that there could be such --
Unknown Speaker: Well, how does it coerce somebody?
Mr. Robert Bartels: Your Honor, I think that the detective Leaming was trying to play on the defendant’s psychological weakness to make him do something that he would not have done under any just ordinary question and answering the case and that to play on those kinds of weaknesses amounts to psychological coercion.
If there is anything besides physical coercion then Your Honor, I think this is the case.
Unknown Speaker: Given, the record as it now here Mr. Bartels, if the only evidence introduced against your client, the defendant at all was his statement, did you find the shoes, that is assume nothing else beyond that, would you say that should have bend excluded under the exclusionary rule?
Mr. Robert Bartels: Your Honor, I doubt it, and I think there are might have been, there had to be some further enquiry then by the trial courts, both federal and state, in terms of whether that question was somehow connected to the Christian Burial Speech, but I think on this record, we really do not know that and I am perfectly willing to conceded that that statement alone could have been admissible.
That is not what we were talking about here.
We are talking about the other information that was provided as result of the Christian Burial speech and the other questioning that is in place.
Unknown Speaker: Do you think that it would not be incriminating evidence to have that introduced?
Mr. Robert Bartels: Your honor, I think that would have been probably admissible as barely relevant on the issue of whether…
Unknown Speaker: Incriminating…
Mr. Robert Bartels: Well, Your Honor, I think if it were not incriminating, it would be relevant so my answer is yes because I think it might be regarded that somewhat incriminating.
Unknown Speaker: I am assuming that a situation would prevail on that, that he would not take the stand.
You suggest there is a prosecutor who could not make a great of capital out of that in his closing arguments, all the other circumstances, the evidence at the YMCA, the man was seen carrying a bundle with two legs of small children and the feet with shoes on.
Mr. Robert Bartels: Your Honor, I think someone might make something out of this question about the shoes.
On the other hand there are a number of – I think that can also be explained as a curiosity in that warning to know what evidence has been found.
Now, admittedly, Your Honor, it could be relevant and it would be something that the prosecutor could use.
I can only say as a prosecutor that I would far rather have the fact that the defendant showed the location of the body and knew the location of the shoes.
Unknown Speaker: That is conclusive, that is conclusive.
Mr. Robert Bartels: I think the question here is whether the admission of the other statements about the location, the body was harmless beyond reasonable doubt.
Unknown Speaker: How about the search for the clothing and the blanket? Would that be -- do you think that would have been admissible?
Mr. Robert Bartels: Your Honor, I doubt that.
One thing that happened that tends to get lost in the Attorney General’s description is that is that there was questioning about that.
It was not simply a conversation and a statement.
After the initial question about the shoes, detective Leaming and detective Nelson who is the other individual in the car made some statements about how they did not know whether the shoes have been found and some evidence had been found, but they did know exactly what and then they said did you put the shoes with the other stuff and he said no, I put them in a gas-station and then they asked, what kind of shoes were they, were they Go-Go boots and again there was response.
Unknown Speaker: And you think all of that would necessarily be barred along with the body of the victim?
Mr. Robert Bartels: Your Honor, I think that is further interrogation, yes.
Your Honor in addition of this agreement perhaps I clarify some more.
Unknown Speaker: Let me ask you one question about the agreement if I may Mr. Bartels along the line I asked the Attorney General about your theory.
Supposing that I am defense counsel and you are a prosecuting Attorney and I come to you and I say I know you have got my client under suspicion, here is the $1000, you promise not to interrogate him for the next ten days.
Now, you take the $1000 and you call him before a grand jury five days later, do you think that is an enforceable agreement?
Mr. Robert Bartels: Your Honor, I think it is in essence, not because of the $1000.
I think what is crucial about the agreement here, Your Honor, is that Mr. McKnight was led, misled into not doing other things he could have done to further protect the defendant’s rights, like, ask to go along in the police car, like inform the defendant in much more detail about his rights and about the crucial importance in terms of the admissibility of evidence at trial that he not disclose the body, the location of the body directly to the police officers, rather than through counsel, as obviously was Mr. McKnight’s intent.
Unknown Speaker: Well, you think in agreement between parties like this is enforceable; this is it or a contract?
Mr. Robert Bartels: Your Honor let me clarify.
I think it is enforceable on behalf of the defendant that if any interrogation takes place during that time, that it is improper, that it is a violation of the right to counsel.
The $1000 is clearly improper, but it has no bearing on that.
Unknown Speaker: Then what you are saying is it is improper because it is a violation of a constitutional right, not because of Iowa contract law?
Mr. Robert Bartels: You are right, that is right, Your Honor.
The defendant has the right of the assistance of counsel and one of the kinds of assistance that counsel can give is to make agreements of this sort with the prosecutor and this kind of agreement is likely to change the course of conduct by the defense counsel in terms of what else he would have done to protect those rights in the absence of these.
Unknown Speaker: But then the agreement itself is not separately enforceable to bar the evidence.
It is simply a factor to be taken in consideration to see whether the defendant’s constitutional rights have been violated.
Mr. Robert Bartels: I think that is true characterization, Your Honor.
Unknown Speaker: Mr. Bartels you keep raising the point about not let him in the car, was he not told that it is against police regulations, it was impossible?
Mr. Robert Bartels: He was told it was impossible, Your Honor, and…
Unknown Speaker: Well, is that true?
Mr. Robert Bartels: Your Honor, I do not know.
There is nothing in the record to suggest that.
I am not quite sure why in these circumstances…
Unknown Speaker: Well, any police regulations you read will tell you that lawyers cannot ride in cars with their client.
Mr. Robert Bartels: Your Honor, we are not against saying that Mr. Kelly had an enforceable right to be in the car.
Unknown Speaker: (Inaudible) I thought you put too much emphasis on it; that is what I thought.
Mr. Robert Bartels: No, I think the point of it Your Honor is that when the police were going to have the defendant isolated from his counsel in that way for whatever reasons, that they were then required not to question, not only because of the agreement but because of the other indications that the defendant should not be questioned or provide information in the absence of his attorney.
Your Honor, we could pretend Mr. Kelly did not even exist in the case, and the case would have to go the same way, it is simply a factor.
Now, any of these factors are, I guess, I have neglected to talk about, although the attorney general has several statements by the defendant that he would tell the whole story after and Mr. Turner, I think inadvertently left out the fact after he saw Mr. McKnight, in Des Moines, not just after he got back to Des Moines, there is clearly a reference to counsel on those statements and in detective Leaming’s on testimony.
Now, any of the facts that I have discussed so far, taken individually would have constitutionally precluded detective Leaming from engaging in the interrogation that took place here.
In the face of all of them, he did engage in these efforts to obtain information and specifically for the purpose of getting it, before the defendant could reach McKnight; he concedes that was his purpose.
That kind of purposeful attempt to obtain information, given all his background about the agreement, the other indications that there should be no questioning, the fact that defendant had counsel with regard to a crime with which he had been charged.
That purposeful interrogation in light of all those facts clearly is a violation of the defendant’s right to counsel under the Sixth and Fourteenth Amendments.
And that is quite apart for any considerations of Miranda versus Arizona here.
Even if the case did not exist, we would still have the same result.
Now, at the same time it is true that Miranda provides an alternative basis.
Unknown Speaker: Well, it is the only basis the Eighth Circuit rested on this, is it not?
Mr. Robert Bartels: No, Your Honor.
I think that the Eighth Circuit's decision also rested on the Sixth Amendment right to counsel, if I recall it correct.
Unknown Speaker: You think so.
Mr. Robert Bartels: Yes, Your Honor, and clearly the District Court’s decision rested on several grounds.
Now, the Eighth Circuit did not deal with the voluntaryness issue, Your Honor.
Unknown Speaker: (Inaudible) it all, did it?
Mr. Robert Bartels: No, Your Honor, it simply affirmed and its discussion of the grounds for affirmance did not include any discussion of voluntariness.
I think the meaning of that is the District Court’s decision on that stood and it still stands.
Unknown Speaker: Well, if the District Court’s decision on that had stood in the deal with the Eighth Circuit, why would it had been necessary to get into issues like Miranda and the right of counsel.
Why would it not simply have affirmed on the involuntariness point?
Mr. Robert Bartels: Well, Your Honor, I think that Eighth Circuit was faced with choice of several equal theories, any one or two or three of which it could have discussed and there was really nothing about any of them that said that this issue or that issue should be the one that we rely on primarily.
I think the Court of Appeals might primarily on the Sixth Amendment and Miranda, Browns and I gather, they simply decided that it was not really necessary to also make the alternative finding of voluntary.
Unknown Speaker: If we should, if this Court should reject the Miranda and the Sixth Amendment grounds and be unwilling to pass upon the involuntariness grounds, I suppose that the case should be sent back to the Eighth Circuit, so that it could consider whatever the state had to say about the involuntariness finding being clearly erroneous.
No, Your Honor, I do not think so.
The Eighth Circuit, the voluntariness issue was clearly presented to the Eighth Circuit and was litigated there, and I think the affirmance of the lower court opinion means that they, the lower court’s decision was affirmed.
Unknown Speaker: There is not sense in the Eight Circuit is opinion that it was first a voluntary.
Mr. Robert Bartels: That is correct Your Honor.
Unknown Speaker: Except in the dissent.
Mr. Robert Bartels: In the dissent, Your Honor, it is raised and then challenged at that point, and I think that reflects the fact that it was litigated and considered.
Now, under the Miranda case, I am going to touch on this very briefly, there is also clearly…
Unknown Speaker: Up to now you have not been talking.
I am asking this question, up to now your argument has not relied on the Miranda case and…
Mr. Robert Bartels: No, Your Honor, I think it…
Unknown Speaker: It is rely rather on the Massiah and Escobedo and basically on the Sixth and Fourteenth Amendments.
Mr. Robert Bartels: That is correct Your Honor.
Everything I have said, I think about the facts also relates to the Miranda claim, but clearly there is the violation here quite apart from Miranda or Escobedo.
Now, under Miranda, again, there is alternative ground and I think, in fact, there are two ways of looking under Miranda probably the most important way here is that since the defendant himself and through counsel indicated rather clearly that he did not wish to make any statements in the absence of counsel.
Miranda says, interrogation must cease, per se rule.
I think this Court’s opinions in Michigan versus Mosley clarified that and reaffirmed that distinction between invocations of a desire to have a lawyer and invocations of the right to remain silent.
So that there is no question here about some time passing after that and being able to re-interrogate after a certain point of time, even under the right to remain silent rubric as I read (Inaudible) Your Honor, there was a clear length of time during which the right to remain silent had been invoked, it was about the same crime and that the Mosley analysis on that point also would not apply to this case, but the counsel point is still much clearer.
Your Honor, I think I also want to make some statements about waiver here.
I think the state’s primary defense really here is that somehow there was a waiver and what Mr. Turner has a relied upon here, first of all is the question, did you find the shoes and secondly the fact that the defendant provided information.
Your Honor neither of those statements in anyway can be said to be an indication that I want to waive my lawyer.
There is not even an inference to be drawn there from the statement.
Unknown Speaker: Well, here is another question, the question of waiving the right to remain the silent on this very crucial subject.
I think it is a different question from waiving a right to a lawyer, is it not?
Mr. Robert Bartels: That is right, Your Honor, I think the second problem with the state’s view here is supposedly the statements come after the defendants’ right not to be questioned in the absence of his lawyer has already occurred, and surely Your Honor, the waiver has to precede the violation in order to take care of it.
Unknown Speaker: That right stems from Miranda that you are arguing now, is it not?
Mr. Robert Bartels: Your Honor, I think it stems both from Miranda and from the Sixth Amendment right to have Sixth and Fourteenth Amendment, the right to have the assistance of counsel during this kind of critical stage after a charge has been filed.
Chief Justice Warren E. Burger: We will resume after lunch if you have anything further.
Mr. Bartels, you may resume your argument.
Mr. Robert Bartels: Mr. Chief Justice, may it please the Court.
The few minutes that I have left, I thought I perhaps should address a question that was raised by Justice Blackmun during my opponent’s argument that is your applicability of the Stone and Rice cases to this particular case.
I think the simplest answer to the question is that, that issue has never been raised here.
It was never raised below.
It was not presented in the petition for Certiorari.
It was not addressed in the petitioner’s brief on the merits and it was not even --
Unknown Speaker: It could not be, because Stone against Powell had come down in a long while.
Mr. Robert Bartels: Your Honor, I think the issue could have been raised as it was by the litigant’s stand in the Stone case, but more significantly, I think Your Honor, that even in the reply brief that was filed last week, there is simply no mention at this issue by the state.
Unknown Speaker: But you have to say about Stone and Powell, would you think that could control here?
Mr. Robert Bartels: No Your Honor.
Unknown Speaker: Tell us why.
Mr. Robert Bartels: Well, Your Honor, I think that the rationale in those cases was carefully limited to the purposes of the Fourth Amendment, the exclusionary ruling.
This Court has recognized that there are rather different purposes behind that exclusionary rule and for example the protection of the right to counsel that is involved in this case for the Court to apply Stone and Rice in this case would be a tremendous expansion of the Stone and Rice doctrine well beyond the rationale.
I think that the Court offered in that case, which basically related to the purely deterrent rationale of the Fourth Amendment, and I think we have that here, particularly with regard to the Sixth Amendment on the terms of the case.
Your Honor, what the state basically asked this Court to do in this particular case, is to hold that law enforcement officers may do virtually anything, short a physical violence or threats, physical violence to obtain information from persons formally charged with crime during interrogation processes and reversal of the Court of Appeals and the District Court’s opinion in this case would mean among other things that the police would be completely free to ignore the existence of counsel in a criminal case and indeed to go further than that and to evade counsel through what the state itself has termed trickery and deceit.
Your Honor, that result would be contrary to the precedents of this Court.
It would emasculate the Fifth and Sixth and Fourteenth Amendments in this kind of situation and it would also make it virtually impossible for defense counsel to operate in a sensible way in dealing with clients and the police in criminal cases.
Chief Justice Warren E. Burger: Thank you gentleman, I think the state has used its time.
The case is submitted.