SOLEM v. STUMES

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ORAL ARGUMENT OF MARK V. MEIERHENRY, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We'll hear arugments next in Solem against Stumes.

Mr. Attorney General.

Mark V. Meierhenry: Mr. Chief Justice, and may it please the Court:

This case comes to the Court from the Eighth Circuit Court of Appeals.

The Eighth Circuit Court of Appeals, under the case of Edward versus Arizona, in a case collaterally attacking the conviction of Mr. Stumes, reversed the District Court.

The question presented to this Court is whether Edward versus Arizona will be applied retroactively to the case of Mr. Stumes when that attack was made by a habeas corpus relief.

The facts essentially on this case is in 1973 Norman Stumes killed a young lady in Sioux Falls, South Dakota.

This occurred on September 17, 1973.

Ten days later he was arrested in Green Bay, Wisconsin, on other charges that had been pending, not on what were originally filed as murder charges, but on perjury charges and other charges at that time.

During the time that the authorities were seeking him for questioning concerning the death of Miss Hoff, his mother hired an attorney for him.

And, his attorney had a conversation with the law enforcement officers in Sioux Falls, South Dakota, and that lawyer advised the law enforcement officers that if he got a hold of Mr. Stumes first, he would tell him to turn himself in for questioning.

On the other hand, if the authorities found him first and arrested him first, that they would not question him until the attorney, Mr. Jorgensen, was notified, and that was done.

Mr. Jorgensen was notified some time on the 27th of October 1973... or the 27th of September 1973 that Mr. Stumes had been arrested over in Green Bay.

Mr. Jorgensen then, either on the 28th or the 29th of September in 1973, called Norman Stumes and told him not to talk to anybody until he was brought back to South Dakota, to exercise his right to speak with no one.

Upon being arrested by the Green Bay authorities, he was given his Miranda rights which were required in 1973 and he made no statements at that time.

Later on two police officers, as well as a deputy sheriff from South Dakota, went to Green Bay to transport him back and they arrived there on October 1st.

They met with Mr. Stumes in Wisconsin, Brown County, Wisconsin jail at which time Mr. Stumes gave them voluntary permission to search where he had been arrested, the place where he had been arrested and his automobile.

He was also given Miranda warnings at that time by the South Dakota authorities and a conversation ensued for about an hour and 45 minutes of which nothing incriminating came out of that.

Later that afternoon there was another conversation between the Defendant and the authorities.

He was not given his Miranda rights.

The record is clear.

And, the only, as found by the District Court, the only true incriminating thing is that he admitted that he had intercourse with the dead girl on the day in question and he also, in answer to a question posed to him, was this death accidental, he answered that it was.

Of course, he was going to be brought back to South Dakota on these other charges, not the murder charges, and so on October 2nd, they proceeded to get an in automobile and drive the 500 miles from Green Bay, Wisconsin, back to Sioux Falls, South Dakota.

When they got in the car, he was once again given his Miranda warnings.

And, a conversation about the case, about the murder part of the case, took place for 20 or 30 minutes.

They left about 9:00 in the morning from Green Bay, drove in a westerly direction towards Sioux Falls, South Dakota, arrived back in Sioux Falls, South Dakota about 6:45 in the evening.

But, about 90 miles from Sioux Falls, Norman Stumes, and I will take his words, said... Norman Stumes, in testifying at various hearings, said,

"I had a little conflict with my emotions. "

and he began to sob and he made the statement to the effect, I don't understand why anybody would want to kill a young girl like Joyce.

And, Detective Green, an officer of the State of South Dakota, said, Norman, it probably... Why don't you get it off your chest, at which time he made admissions that implicated him and were used against him at his trial.

And, Stumes also said at that time, according to Detective Green, that I have been wanting to tell somebody about this but I didn't know how to do it or who to talk to.

This conversation took place approximately 90 miles from Sioux Falls, and although the record is not clear, about 5:00 in the afternoon.

Throughout that time, from 9:00 to 9:30, throughout the day, Norman Stumes himself says he was not interrogated, that there was general conversation about the Green Bay Packers, automobile racing, and other such things.

Just prior to his starting to sob and make these statements... he describes the situation, the Defendant does, like this: That there had been no conversation in the car for 10 or 15 minutes.

Officer Skadsen, who was sitting in the front seat of this automobile, was almost alseep, he was nodding off.

The other gentleman was driving.

Detective Green was looking out of the window somewhat bored.

That is when he had his conflict with his emotions, began with the statement, why would anyone want to kill Joyce, began to sob.

The officer said, Norman, get it off your chest, at which time he made the statement.

Once they returned back to South Dakota, he was placed in the jail.

The officers broke off all contact with him.

They went to another part.

He sent word out through a jailer, called Detective Skadsen back into the jail area, and said to Officer Skadsen, please tell them that I am not a vicious killer, that I didn't mean to do it.

The Eighth Circuit held Edwards to be retroactive and held that in--

Unidentified Justice: What about the rest of the facts?

He sent word out and then what happened?

Mark V. Meierhenry: --Officer Skadsen came back into the jail area.

Norman Stumes came out to him--

Unidentified Justice: What did he say?

Did he want to talk or what, the officer?

Mark V. Meierhenry: --The officer said basically what did you want, Norman, or... I can't recall the exact words, Justice, but words to that effect.

Unidentified Justice: And then what happened?

Mark V. Meierhenry: He said to Skadsen, Officer Skadsen, he said tell them that I am not a vicious killer.

Unidentified Justice: Then what happened?

Mark V. Meierhenry: Then--

Unidentified Justice: Were there any other admissions at that time?

Mark V. Meierhenry: --No, other than he was not a vicious killer and he wanted Officer Skadsen to tell others that he was not a vicious killer.

Unidentified Justice: What statements were admitted at his trial, the ones in the car--

Mark V. Meierhenry: Yes.

Unidentified Justice: --And anything prior to that?

Mark V. Meierhenry: Yes.

Unidentified Justice: Any of his statements prior to that?

Mark V. Meierhenry: Well, a description of his statements prior to that.

The only truly incriminating statements took place in the automobile and also later.

The threshold--

Unidentified Justice: Later when?

Mark V. Meierhenry: --At the jail, the one we just alluded to.

Unidentified Justice: Is that the only one?

Mark V. Meierhenry: The only one from the prior day of October 1st in the afternoon was he admitted that he had intercourse and when asked the question, what kind of death was this, was it accidental?

He said it was accidental.

That was admitted as well as the conversation in general that I have alluded to in the automobile at approximately 5:00, based on driving times in the afternoon, and then the one back at the jail after he had been lodged into jail on these other charges.

Unidentified Justice: What is your defense of the statements made the day before?

Mark V. Meierhenry: Well, first of all, it is two parts.

First of all, this Court will should agree, I guess you would say, to apply the retroactive effect.

Unidentified Justice: Right.

Mark V. Meierhenry: I don't think we get to that unless this Court decides to apply Edwards retroactively, which, of course, we would say this is like Miranda and the many other cases this Court has not applied retroactively, shouldn't be applied retroactively, because the Court has indicated to those of us whose duty it is to educate the law enforcement officers... At least in my state it falls upon the Attorney General, and when this Court makes a rule like Edwards, a new rule, one that we were not used to, certain things go into operation.

As the Attorney General, my duty is to train all the law enforcement officers as well as to supervise prosecutors.

So, when this Court... Within days after this Court makes a new rule like Edwards, we immediately send out in police parlance, you might say, what can occur and what cannot occur throughout our state and that is done on almost an emergency basis, because there is no reason to start a case and not follow the proper procedures.

So, with that in mind, we have to decide whether this case should be retroactively applied as the Eighth Circuit did, and, of course, as indicated in the Palteire case, this is not an appropriate type of case for retroactive effect.

It does not assist in any way the truth-finding portion of the trial.

As a matter of fact, if we follow what the Eighth Circuit has said, and we go back and retry Norman Stumes, the truthful statements that he made to law enforcement officers will be suppressed by the exclusionary rule, whereas, those matters found to be untruthful, his version of what happened that day, and his attempt, testifying under oath before a jury to escape the culpability that he had admitted to prior, will be allowed in.

In other words, we will have decided a case, apply the exclusionary rule retroactively, take the truth out of the case, and leave the Defendant--

Unidentified Justice: But, if he takes the stand and testifies the way he did, wouldn't some of the statements that might be excluded initially under Miranda and Edwards be admissible on cross examination?

Mark V. Meierhenry: --Yes, Justice, but I can't imagine a competent defense attorney would ever put him on the stand.

I mean, from a practical viewpoint, it wouldn't occur.

Unidentified Justice: But then his statements in the new trial, his testimony wouldn't be presented any more than the adverse testimony.

Mark V. Meierhenry: That is right.

And, of course, if you look at this case, and I will not make any admissions as to what would occur later except that we are obviously committed to reprosecute if the Eighth Circuit is confirmed, but this is ten years ago.

Officer Green is dead.

There is obviously a different approach as to the evidence we will have to present at the second trial from the first.

The removing of his admissions and confessions in most of these types of cases where the admission or confession occurred early on effectively denies the public the right to have a trial on this issue.

First of all, it was not the law in 1973, when Norman Stumes went to trial, and when the Circuit Judge of our state first ruled on his admissibility or the Supreme Court of the state.

So having had that direct part of the case over, we do not have at this time the resources to keep ten years of evidence for every criminal case tried in the State of South Dakota, which the Eighth Circuit seems to be saying to us that we must do.

We must wait in case there is a retroactive application of a case like Edwards.

Are we going to build mammoth evidence lockers in our state to keep the evidence of each and every case with the chance that it could be applied retroactively, because the state most certainly does not want Norman Stumes just turned free.

We would have to make an attempt to retry him for the vicious killing that he really has never made any claim throughout the appeal that he didn't do.

It isn't a question of whether this man killed a young girl for no reason in Sioux Falls, South Dakota.

The question is whether we make a retroactive application of the exclusionary rule which this Court has said in different decisions is a rule to prevent, to deter those of us in law enforcement in the future, but in this case it will most certainly not do that.

The day Edwards was decided and we got word in the State of South Dakota, law enforcement changed.

We did it on an emergency basis, because the Edwards case--

Unidentified Justice: May I ask, would you tell me exactly what you did differently after Edwards than what you thought was required before?

Mark V. Meierhenry: --Well, the way we put it out to our prosecutors and our law enforcement officers is in the context that it basically added another element of proof to any case where someone confesses or makes admissions.

And, I know... I am going to answer your question not according to what the Court has described it, but the way we described it to the cop on the street that has to do this the day after your decision in Edwards.

We said it is like another element of proof.

It has totally changed the way we did it under Miranda.

Therefore, it is up to us to prove that the individual, once he has made a claim to remain silent or for a lawyer, we have to be able to prove that not only did he waive that right, that he did so willingly and he came to you.

So, what we told our officers is that is a very important... We can't even get to trial or we will never be able to use it unless you can prove that it was a knowing, willing situation.

Unidentified Justice: What did you tell your officers before Edwards when a person being interrogated asked for a lawyer?

What were the outstanding orders to the police at that time?

Mark V. Meierhenry: We told them, just as the District Court Judge, Judge Nichol found in this case, to scrupulously observe, as was done in this case, that if he wants to talk to a lawyer, you cease questioning and give him an opportunity to do so.

And, on two occasions in this very case, that was done.

Unidentified Justice: Did you have a rule on whether you could start reinterrogation after any specific--

Mark V. Meierhenry: The State of South Dakota did not.

We were not aware that this Court or any other federal court said that you can never talk to a criminal defendant again.

Unidentified Justice: --Well, it says... I mean, the passage of Miranda they quote, until they had consulted with a lawyer.

Mark V. Meierhenry: Well, first--

Unidentified Justice: Wasn't that plain in Miranda, that you weren't suppose to talk to him a second time until he talked to a lawyer in the interval?

Mark V. Meierhenry: --Well, I think that was his right to exercise.

He had to be given the opportunity to exercise that right.

But, again--

Unidentified Justice: Was it your view that the police could just wait a couple of hours while he had an opportunity to exercise the right and then just go back in?

Mark V. Meierhenry: --I think they could go back and inquire if he wished to talk.

Unidentified Justice: The could initiate the second conversation?

Mark V. Meierhenry: They could--

Unidentified Justice: Even though they knew he hadn't consulted a lawyer.

Mark V. Meierhenry: --Well, if he willingly did so.

Miranda appeared to indicate to the average policeman that those rights are to be scrupulously observed.

And, if the individual says I want to talk to my lawyer... Let's take our case.

He freely talked to the authorities.

So, it isn't a question... He talked to them and at the point he said, when he was asked if he would take a polygraph, because others had taken a polygraph, he had made no admissions at this point.

He said I think I want to talk to Steve before I do that.

Steve, referring to Steve Jergensen, his lawyer back in Sioux Falls, at which time the questioning stopped.

Now, they knew he had talked to him on the telephone.

He was probably never prevented, although the record would not reflect that, from making a telephone call.

Unidentified Justice: And you are telling me it was the policy of your office, once that is done, you can go back in and question him again any time you want to?

Mark V. Meierhenry: It is no longer.

Unidentified Justice: Was it before Edwards?

Mark V. Meierhenry: Well, it wasn't my office, but the policy was... I was a defense lawyer at that time... that if he was given his Miranda warnings, he knew them, he understood them, and he chose to speak, he could do that.

He said, I don't want to talk any more--

Unidentified Justice: So, the request for a lawyer did not deter the prosecutor or the police from reinterrogating whenever they decided to by just giving the second set of warnings.

That is the way you read Miranda.

I mean, your office read Miranda.

Mark V. Meierhenry: --At that time, when Stumes was there, I was defending Stumes, not prosecuting him.

I can't speak what the rules were prior to 1978.

What we are saying is--

Unidentified Justice: But your whole case depends on there having been a change in the rules and you say you don't know what the rules were before.

Mark V. Meierhenry: --No, I am not saying I don't know what the rules were before.

I am saying I don't know what the Attorney General of the state had decreed.

I know what the law was and the law allowed authorities to not reinterrogate, but to go back and question whether he wished to talk some more.

This was nothing like in Edwards where he was told he had to talk.

You have in this case--

Unidentified Justice: Will you tell me what in Miranda says you can go back over and over again?

Mark V. Meierhenry: --I don't think Miranda teaches that, but Miranda--

Unidentified Justice: I thought you just said that.

Mark V. Meierhenry: --Miranda teaches that... When you say go back over and over, there is the illusion that there is an oppressiveness about this whole conversation and I would submit from the standpoint of every state in the union that if an individual says he doesn't want to talk, he should not be pressured into talking.

That does not stop the authorities from going in an seeing if he now wishes to discuss this matter, because--

Unidentified Justice: Over and over again.

Mark V. Meierhenry: --Well, again, it is a matter of degree.

As you looked at in some of the progency of Miranda.

Unidentified Justice: Why did they drive him instead of flying him from town to town?

Did they drive him for the purpose of talking to him?

Mark V. Meierhenry: No.

I think I would have to explain to you about South Dakota.

First of all, we are one of the few--

Unidentified Justice: Because of airline service?

Mark V. Meierhenry: --Well, it does, but to transport a prisoner today on commercial airlines is very difficult.

It is not done very often, number one.

It wasn't done in '73.

You can't wear a gun on an airliner, you can't use handcuffs on an airliner, on and on and on.

So, the normal way of doing things in the midwest is to drive and get them.

Secondly, that there is cost.

That would be changed today because we have purchased our own airplane, but it was the normal course of transportation, not only in South Dakota, but throughout the midwest.

To drive over to Green Bay, which is only 500 miles... In South Dakota, we go 170 miles to go to District Court.

It is not even unusual.

Unidentified Justice: Or lunch.

Mark V. Meierhenry: Or to lunch, yes.

[Laughter]

There are cases that we have tried and we don't even have a restaurant in the town we have tried the case in.

Unidentified Justice: It is still a ten-hour drive.

Mark V. Meierhenry: Yes.

But, it is not unusual.

In fact, until the--

Unidentified Justice: I am not talking about unusual.

I am just talking about to take a lot of time when a man is just constantly telling him about his Miranda rights and all, you know.

Mark V. Meierhenry: --Well, I think if you look at the facts of this case, and I think Judge Nichol, who is a good jurist in our state, he found that that is not unusual.

First of all, they talked about the Green Bay Packers which has nothing to do with crime.

They talked about racing.

This is normal to spend great hours of time in automobiles where we come from.

It is not unusual at all.

And, besides that, you are talking about an individual here that willingly talked at every stage which Miranda never stopped us from listening to people who wanted to tell us they killed others.

Unidentified Justice: Well, why did you keep giving him his Miranda warnings?

Mark V. Meierhenry: Because that was--

Unidentified Justice: Wait a minute.

You said he just continued to talk on and on, right?

Mark V. Meierhenry: --Yes.

Unidentified Justice: Well, why give him Miranda warnings over and over again?

Mark V. Meierhenry: I think out of an abundance of caution.

If you go back through the records of state court trials in South Dakota, you will find people that are simply witnesses, police officers given the Miranda warnings because they don't want to make a mistake.

They don't want to go too far.

They don't want to arrest a person, convict them, and then at a later date have him let go on appeal because of their mistake, because they didn't give a Miranda warning when they should, because they didn't figure out who initiated it, which is the new Edwards rule, which, to us, is absolutely new, not an extension of Miranda, adds an element of proof.

If we are to sustain a conviction, we must prove that if he confesses as Stumes did here.

There is no question about this man's guilt.

It is a question of procedure of retroactive application of a rule.

And, when a case like Edwards comes down, I have learned as Attorney General, we must immediately put it into effect, otherwise we will be right back here or my predecessor will, eight or ten years, not arguing about the guilt, not arguing about the trial being fair, arguing about who initiated the statements that lead to the confession.

We think that this case is just like... not just like, very similar to Oregon versus Bradshaw in the sense that in that case a majority of this Court held that first we have to see who initiated the conversation and then, secondly, we have to show by a totality of the circumstances that it was a willing and knowing waiver.

In this case, the Defendant himself says I wasn't being interrogated, there was just some conversation.

Then he said, and this was immediately... during the conversation that is so crucial, he said I had to tell somebody, I had to get it out, and I wanted to talk.

And, I see nothing in the Constitution that prevents an individual from confessing to a law enforcement officer.

That is what happened here.

And, as the law was at that time, under Miranda... Judge Nichol ruled under Miranda all of this was proper, all of this was admissible.

The only thing that the Eighth Circuit, and I think it is important to note the times, Judge Nichol refers to the oral argument reported in Law Week of the Edwards case, but it was decided after Judge Nichol made his ruling at the District Court level and obviously the Eighth Circuit used it in making their decision.

But, the Eighth Circuit, in applying the retroactivity, never had a discussion of how in this case it would ever help the truth-finding process to make it retroactive.

Miranda itself was not retroactive.

How does it help the truth-finding process to eliminate truthful statements from the trial?

It is the same argument we made to this Court, South Dakota did in Nebel.

How does it ever help the truth-finding process to retroactively exclude the truth?

Now, if we... I will assume for my argument that we agree with the exclusionary rule as authority in South Dakota.

Once the rule of Edwards came into effect May 18, 1981, of course, we must scrupulously follow it, as we followed Miranda in 1973 in Mr. Stumes' case, because if we have the right person, if the jury finds him guilty, we want it to be upheld.

We don't want to lose because of ignorance or misguided statements taken from other people or--

Unidentified Justice: I notice that you don't say Innis against Rhode Island.

You may recall that case.

There the officers sitting in the front seat of the car engaged in a conversation which, although not directed at the accused, clearly prompted him to tell them where the gun and other incriminating evidence was to be found.

Mark V. Meierhenry: --I have not referred to that Innis case or others because of the one question from the Court already, the assumption that these long drives in automobiles are somehow set up.

You know, either to be the Christian Burial Speech or the Innis case where some little girl would be injured by the shotgun.

Here there was no such statement.

There was quiet.

We have a nodding-off police officer, one looking out the window, and the other one driving.

Unidentified Justice: In other words, you are saying this conduct of the police here is acceptable under Innis?

Mark V. Meierhenry: I most certainly think so.

To refrain... When they left Green Bay, Wisconsin, there was testimony about the death of Joyce Hoff.

After that, it became an automobile trip of transporting a prisoner, proper, normal, usual under all of our practices.

They stopped for lunch, they stopped for gasoline, and so forth along the way.

It was only as the car approached Sioux Falls, some 60 to 90 miles away, that he blurted out or he began to blurt out what had occurred.

He started sobbing out of the blue, no conversation, according to the Defendant himself for 10 or 15 minutes.

He said, I don't know why anyone would want to kill Joyce Hoff, and started to make the statements.

The officer said, why don't you get it off your chest?

And, he then proceeded to do so.

His next statement was I have been wanting to tell somebody about this.

That is a knowing waiver.

Later on Detective Green said, Norman, we are going to want a written statement when you get back and your lawyer probably won't let you give it.

And, he says, in effect, I don't give a damn, I will talk to anybody I want to.

He was aware of his rights.

He was aware of his Miranda warnings.

And, under the facts, should you hold this to be retroactive, which we most certainly don't think is a proper case at all for retroactivity, even under the facts, the Eighth Circuit was incorrect in holding that he did not knowingly and voluntarily waive his right to have an attorney present.

Unidentified Justice: Well, Mr. Attorney General, do you challenge any part of the Court of Appeals' version of the facts?

Mark V. Meierhenry: Yes, we do.

Unidentified Justice: Well, do you expect us to... Why shouldn't we accept those?

Mark V. Meierhenry: Well, I don't know if it is proper for me to argue.

That was one of our questions on our Writ of Cert. It was not granted.

But--

Unidentified Justice: Well, if that--

Mark V. Meierhenry: --I think that the District Court is the proper place to find the facts.

Unidentified Justice: --Because you say... In your version here, you say after they got in the car nothing really happened relative to the murder until he started sobbing and yet your opposition says that the Respondent was advised of his Miranda rights and questioning began almost immediately.

The purpose of the question was to elicit further incriminating statements from Respondent.

Is that false?

Mark V. Meierhenry: If that is your understanding, I mistated it.

I said after he was put in the car he was questioned for 20 or 30 minutes.

Then the rest--

Unidentified Justice: Wasn't the questioning aimed at eliciting incriminating statements?

Mark V. Meierhenry: --Well, it went over the same subject matters that they had discussed the prior day and he was given his Miranda warnings.

Unidentified Justice: But, he made no incriminating statements during that 20 minutes?

Mark V. Meierhenry: No, none greater than he had the prior afternoon when he admitted to having intercourse with the dead girl and that the death was accidental.

Unidentified Justice: That he was present.

Mark V. Meierhenry: That he was present, yes, which is obviously an incriminating element.

I have tried to give you--

Unidentified Justice: Well, suppose the statements the day before weren't admissible.

Were these statements made in the car admitted in evidence also?

Mark V. Meierhenry: --Yes.

Unidentified Justice: They were, during this 20 minutes?

Mark V. Meierhenry: Yes.

And, the District Court found that there was a knowing, voluntary waiver and the District Court put out a full factor, which is repeated in the Eighth Circuit's decision.

This was an experienced criminal.

He knew what he was doing.

He knew fully well what he was doing.

And, I say in many cases they know what appellate courts will be looking for in the way they answer questions.

We would urge this Court... And have a few moments for rebuttal... urge this Court to reverse the Eighth Circuit and simply affirm Judge Nichol's District Court appeal or District Court case in effect.

Chief Justice Warren E. Burger: Mr. McGreevy?

ORAL ARGUMENT OF TIMOTHY J. MC GREEVY, ESQ. ON BEHALF OF THE RESPONDENT

Timothy J. Mc Greevy: Mr. Chief Justice, and may it please the Court:

I would like to start out, first of all, spending a few minutes going over the facts.

I think that in some respects the facts have not been stated as I would like to have them stated at this point.

I think it is important to bear in mind that while this case originated in 1973, the Miranda decision of this Court was, of course, handed down seven years, a full seven years prior to the facts that give rise to this case.

And, I think that we need to bear in mind that while the ten years and two months that Mr. Stumes has been in prison is a long time, the 17 years since Miranda is even longer.

We have a situation in this case where on September 17, 1973, the body of the victim is found.

My client, Norman Stumes, is located in Green Bay, Wisconsin, ten days later.

So, it is not a situation where a suspect is found immediately following an alleged crime and immediately confesses, thereby making further independent investigation by the authorities seem pointless.

There was a period of time.

The fact of the matter is that by the time these detectives got to Green Bay to question and transport Norm Stumes, they already knew they had a murder case.

They had a pathologist who indicated that the cause of death and the other circumstances of death were such as to make it a homicide case.

Unidentified Justice: Well, they knew they had a murder case as soon as they found the body, didn't they?

Timothy J. Mc Greevy: Well, I suppose one could say, Mr. Chief Justice, that just by looking at the body you couldn't necessarily tell that it was a felonious or a criminal act.

But, by the time--

Unidentified Justice: Perhaps I couldn't, but a physician could and did, did he not?

Timothy J. Mc Greevy: --That is correct.

Unidentified Justice: So, I don't get the point of this ten days that you are talking about.

Timothy J. Mc Greevy: My point is that during the course of the ten days the authorities took hair samples from the victim, from the body of the victim, and from the apartment, from the shower of the apartment, from other areas of the apartment.

They attempted to take, I believe, fingerprints.

They took blood samples from the body of the victim.

So they did a lot of things to attempt to establish their case and to put their case together.

My point then was that by the time they went to Green Bay they had a prime suspect and that appears in the record, I believe, quite clearly.

They also knew, of course, that Norm's mother... Yes, sir.

Unidentified Justice: Well, you lose me.

The point is, of course, they wouldn't go five or six hundred miles if they didn't think they were going to fetch a suspect.

Timothy J. Mc Greevy: Well, I understood the Attorney General to argue that in cases where you have a confession that is secured very quickly, and I believe he inferred that occurred here, the police, in effect, have a disincentive to put together a case that is based on other than a confession.

I was pointing out that that, I don't think, is the situation here.

Unidentified Justice: Do you contend that the statements made when they were 60 to 90 miles away from Sioux Falls, as it was described and is described in the record, that he became emotional and said he wanted to get it out, do you challenge that?

Timothy J. Mc Greevy: Do I challenge the admissibility of those statements?

Unidentified Justice: Yes.

Do you challenge that it occurred first?

Timothy J. Mc Greevy: I must say that Mr. Stumes at trial testified that it never happened, that that is part of the record made at the trial.

For the purposes of this appeal and for the purposes of the session here today, I think we have to assume the allegations of the police to have been true.

It is--

Unidentified Justice: The jury verdict would suggest that they rejected his testimony and believed the officers, does it not?

Timothy J. Mc Greevy: --I would say that that is correct.

I think that before we get to that conversation in the car, Mr. Chief Justice, I think we need to back up to the first session of interrogation.

That is the one that took place from around 9:30 in the morning to about 11:00 in the morning in the jail in Green Bay, Wisconsin.

That interrogation was conducted primarily by a single officer, Green, Detective Green, as Mr. Meierhenry has indicated is now deceased.

That interrogation was preceded by full explanation of Miranda rights.

During that interrogation, Norm indicated that, yes, he knew the victim, but, no, he had not been to the victim's residence, he had not been in the victim's bedroom, he had not had intercourse with the victim.

Towards the end of that session, Detective Green indicates that he wants to know whether Norm is willing to take a polygraph to clear himself as so many others had done.

Norm indicated that he needed to talk to Steve, that he needed to talk to Steve before he answered that question, Steve being the attorney that--

Unidentified Justice: This particular question about the polygraph?

Timothy J. Mc Greevy: --It was broader than that in the record.

Unidentified Justice: Well, that isn't the way you stated it and it isn't the way the Court of Appeals put it nor the District Court.

He just wanted to talk to a lawyer about that question about a polygraph.

Timothy J. Mc Greevy: I believe in my brief in the citations to the transcript, I believe I refer to the fact that it was a broader request than merely in response to the polygraph question.

Unidentified Justice: On what do you base that?

Timothy J. Mc Greevy: Pardon me?

Unidentified Justice: On what do you base that statement that it was a broader question than about the polygraph?

Timothy J. Mc Greevy: I believe I base it on a transcript reference and I need to check that right now.

Unidentified Justice: What did the District Court find?

Timothy J. Mc Greevy: I believe the District--

Unidentified Justice: The Court of Appeals purported to rely on the District Court's findings for its statements.

Timothy J. Mc Greevy: --The District Court and the Eighth Circuit, I believe, Mr. Justice, referred only to a request to talk to Steve prior to answering the polygraph question.

Unidentified Justice: Yes.

Timothy J. Mc Greevy: That is true.

Unidentified Justice: How are we to understand the record any other way then?

Timothy J. Mc Greevy: I guess the way I would approach that is to suggest that I don't think that the District Court or the Eighth Circuit necessarily alluded to every factual element that appears in the record.

Unidentified Justice: Let me ask you this then.

We can read the record.

Let me ask you this.

Suppose that it was perfectly clear that all he meant to say was I want to talk to my lawyer before I answer your question about the polygraph.

Suppose that was it, the questioning stopped.

Then do you think Edwards would prevent the lawyers from coming back and asking him about something else besides the polygraph?

Timothy J. Mc Greevy: Mr. Justice, I believe that not only would Edwards--

Unidentified Justice: That can be a yes or no answer, can't it?

Timothy J. Mc Greevy: --I think it can be a yes answer, but when you finish I might try and explain a little further.

Unidentified Justice: Well, you say, yes.

You say, yes, they would be prevented from coming back and asking any questions.

Timothy J. Mc Greevy: Yes, sir.

Unidentified Justice: I think you have to take that position.

Why?

Now tell me why.

Timothy J. Mc Greevy: Thank you.

My theory on this case has been that one need never even get to Edwards to properly decide this case.

It seems to me that what Miranda says is that if a suspect indicates that he wants to remain silent questioning must cease.

Unidentified Justice: What in this case was it that he wanted to remain silent to use your words?

Timothy J. Mc Greevy: Yes, sir.

Unidentified Justice: When did he say that?

Timothy J. Mc Greevy: He didn't in those words.

My point is--

Unidentified Justice: Well, what words do you say he said that?

Timothy J. Mc Greevy: --When he indicated that he wanted his attorney.

To me, that is--

Unidentified Justice: Well, suppose he said I want to see my attorney to find out what time of day it is?

Would that be all right?

Timothy J. Mc Greevy: --I think that is an unlikely comment for him to make being interrogated regarding a homicide.

But, I suppose if that is what the testimony was, then we might not be here under these circumstances, but that is not what he was getting at and that is not the way the detectives interpreted it.

Unidentified Justice: But, is there anything in the record where he said... You agree that there is nothing in the record where he said hold off until I see my lawyer.

Timothy J. Mc Greevy: Oh, there certainly is.

Unidentified Justice: There is the next day but not on that day.

That is what I am talking about, that day.

Is there anything in the record where he said let's hold off until I talk to my lawyer or I am not going to tell you anything until I talk to my lawyer?

Timothy J. Mc Greevy: If I might... I am not sure which of the Justices I should address at the moment, but--

Unidentified Justice: Take your pick.

Timothy J. Mc Greevy: --Okay.

[Laughter]

Unidentified Justice: Address us all.

Timothy J. Mc Greevy: All right.

A question was raised as to whether the request was a specific request only to talk to Steve before the polygraph question was answered.

In the brief, we indicate that in the preliminary hearing transcript at page 49 and 50... and understand that that testimony at the preliminary hearing doesn't come from Norm Stumes, that comes from a detective.

They indicated that Green in that first interrogation asked if he was responsible for the death of Joyce Hoff and to that Norman replied he would rather not answer until he talked to Steve.

A moment or two later in the same interrogation, Green says do you want to clear yourself by taking a polygraph like everybody else has?

"X number of people" is the term they used.

And, he said he would like to talk to Steve before answering that question.

So, two times in a period of apparently a minute or two there is a request for counsel.

Then, what happened--

Unidentified Justice: You said it was two hours a minute ago.

Now you say two minutes.

Didn't you say they questioned him for two hours that morning?

Timothy J. Mc Greevy: --The first interrogation session, I think, was about one hour and 45 minutes.

Unidentified Justice: And, he said, as to two questions in that time, he said I want my lawyer.

Timothy J. Mc Greevy: Those, I believe, the record would show--

Unidentified Justice: Is that it?

Is that all you have got?

Have you got some more?

Timothy J. Mc Greevy: --Yes, I sure... Yes, I do, Your Honor.

Those two questions that I specifically mentioned occurred at the end of the hour and 45 minutes in this isolated interrogation with Norman Stumes and Green.

Unidentified Justice: But he still said he wanted to talk to his lawyer before answering the question about the polygraph.

Timothy J. Mc Greevy: And that he wanted to talk to his attorney before he answered whether he was involved in the death.

Unidentified Justice: Well, that isn't what--

--Mr. McGreevy?

Timothy J. Mc Greevy: Yes, sir.

Unidentified Justice: To take just a hypothetical case, kind of based on the circumstances that you have been describing, supposing that you have a defendant in custody like your friend Norm, as you refer to him, and he is being interrogated by the police, and there have been no Miranada violations up to that time, and then he is asked by one of the police, will you take a polygraph test to clear yourself and he replies, before answering the question about the polygraph test, I would like to talk to my attorney, and, the police then say, okay, we won't talk any more about the polygraph test, let's talk about where you were at the scene of the crime.

Now, is there any sort of a violation by that question?

Timothy J. Mc Greevy: Under the way I would interpret Miranda, I think that that is a violation.

Unidentified Justice: Miranda is mostly dicta, isn't it?

Timothy J. Mc Greevy: Not the way I view it, I guess.

Unidentified Justice: Do you think all of those facts were presented to the case by the situation of the Arizona imprisonment out of which it arose?

Timothy J. Mc Greevy: No, I am sure that is not the case.

Unidentified Justice: Then isn't it dicta?

Timothy J. Mc Greevy: Perhaps in a technical sense it is, but I think that it expressed the opinion of the court at the time the decision was handed down.

Unidentified Justice: That is true of all dicta, isn't it?

Timothy J. Mc Greevy: I think so, yes, sir.

I wanted to get to the point of the second interrogation, because I think that may be key to our analysis.

After this first interrogation of an hour and 45 minutes where we have denials, denials, denials, ending with two requests to talk to Steve, the detectives leave or I should say Green leaves.

Later in that afternoon Detectives Green and Skadsen return to once again interrogate Stumes.

There is no advice given regarding the Miranda rights, the constitutional rights, no advice of those rights at all.

It is during the course of that interrogation... This is an interrogation that Judge Nichol found to have violated Miranda.

There is no question about that.

The District Court found this interrogation to violate Miranda.

Unidentified Justice: That is not before us though, is it?

Timothy J. Mc Greevy: No, but I think that it provides the linchpin to explain what happened the next day, Mr. Chief Justice, in my view.

During that interrogation, according to the testimony of the officers, they got Mr. Stumes to admit that he had lied in the morning.

They got him, according to their testimony, to admit that, yes, I had been there at the time in question, yes, I had been in the bedroom, yes, yes, we had had intercourse, and then at the end, again, without the benefit of Miranda, they asked the question... Green asked the question, was it accidental or intentional and to that Stumes replies accidental, according to the testimony.

The way I see this situation, when the police had that, in effect, they had their case.

They had gotten the man to acknowledge that he had lied in his previous answers.

They now had him admitting that he was there.

They got him admitting involvement in the death.

Yes, he is claiming that it is accidental.

But, they knew that the facts, the physical facts, belied any claim that the death was accidental.

Unidentified Justice: Aren't all of these preliminary questions really merged into the final statement 60 to 90 miles from Sioux Falls?

In other words, suppose nothing is admissible except that final statement.

On the findings of the District Court and the verdict of the jury, that is the facts that we are bound to accept.

Isn't that the state of facts?

Timothy J. Mc Greevy: I am not positive that I follow that question.

Unidentified Justice: When he got emotionally upset.

Timothy J. Mc Greevy: Yes.

Unidentified Justice: And said I want to tell you about this in words to that effect.

Nobody has asked him any questions at that point.

Timothy J. Mc Greevy: According to the record, not at that particular point in time.

I think the record does show that the detectives started the long trip with fresh Miranda warnings, that they immediately interrogated, and that the record indicates that the interrogation continued intermittently during the long trip.

But, it is true, I don't believe, anything in the record that indicates that there was an outstanding question regarding the interrogation at the time that Mr. Stumes made that--

Unidentified Justice: Aren't we obliged to accept as a fact that that was a spontaneous declaration by him?

Timothy J. Mc Greevy: --I don't believe so.

Unidentified Justice: Sixty to 90 miles away from Sioux Falls.

Why not?

Timothy J. Mc Greevy: Well--

Unidentified Justice: The jury rejected his testimony on it and accepted the police testimony on it and that is consistent with all of the independent fact findings of the District Judge?

Timothy J. Mc Greevy: --The approach that we take on this case, of course, is that the jury ought not to have known of the... I will use your terminology... the spontaneous declaration that was made as the neared Sioux Falls, because, of course, it is our theory of this case that had it not been for the repeated efforts by the police to interrogate absent counsel, and if it had not been for the authorities' interrogation the afternoon before without even benefit of Miranda, that we would never have reached the point where we could have this spontaneous declaration, again, to use your terms, Mr. Chief Justice, occur.

So, we really fashion an argument, I think, that builds one step at a time to reach that final conclusion.

Incidentally--

Unidentified Justice: But, Mr. McGreevy, that is basically a factual conclusion, isn't it, whether something that had happened the previous afternoon did or did not motivate the Defendant in this case to make what the Chief has described as a spontaneous statement?

What are the findings of the District or the Court of Appeals on that particular issue if there are any findings?

We shouldn't be speculating here whether one thing, in fact, caused another.

Timothy J. Mc Greevy: --I can see the problem that you would have with that.

Insofar as whether either of the courts below made findings on that specific issue, I don't think directly that I can recall... the District Court, as I indicated, found the interrogation in the afternoon to have violated the principles of Miranda, but had, for reasons that I never have been able to understand, held that that was harmless.

I have to analogize or contrast that, I should say, to what the Eighth Circuit did when they looked at this case.

The Eighth Circuit looked not only at the interrogation in the automobile, but they also looked at the statements attributed to Mr. Stumes upon arriving at the jail in Sioux Falls.

Counsel for the state has made reference to the fact that according to the detective's testimony Mr. Stumes asked the detective to come back and it is then that he is supposed to have said, tell them I am not a vicious killer.

I believe the Eighth Circuit took the view, for instance, looking at that--

Unidentified Justice: He also said I didn't mean to kill her.

Timothy J. Mc Greevy: --That is the other one you were trying to get at.

I couldn't recall it either.

Unidentified Justice: I wouldn't blame you.

Timothy J. Mc Greevy: Okay.

The point I was trying to make then, Justice Rehnquist, was that just as the Eighth Circuit saw that final incriminating statement as having flowed from the interrogation in the car, I think it is reasonable to presume that--

Unidentified Justice: When you say 90 miles east of Sioux Falls were not the result of interrogation.

Are you saying that the Eighth Circuit found the statement in Sioux Falls as a result of interrogation early in the morning?

Timothy J. Mc Greevy: --It is my understanding that the Eighth Circuit found that the interrogation which took place in the car violated--

Unidentified Justice: Then when did interrogation take place in the car under your view of the record.

Timothy J. Mc Greevy: --Interrogation took place in the car intermittently throughout the day according to the record.

It was intensive at the beginning according to the record.

Then, from that point forward, maybe half an hour into the trip, according to the record it is intermittent.

Now, I realize that is perhaps not the clearest record we would like to have, but that is what we have as a record, intermittent questioning.

Then Mr. Stumes is alleged to have said taking a human life is so useless or words to that effect.

Immediately that was followed by interrogation.

There is no question about that.

And, I don't believe that the state would contend otherwise.

There was vigorous interrogation that then took place.

Unidentified Justice: Of course, that would quite naturally and I think properly prompt interrogation, couldn't it?

If someone... a defendant out of clear blue sky said taking a human life is so useless.

Timothy J. Mc Greevy: Well--

Unidentified Justice: I mean, that is not talking about the Green Bay Packers.

Timothy J. Mc Greevy: --I have difficulty accepting the terminology out of the clear blue sky, because I think this entire episode needs to be seen in the context of what it really was.

I think the whole scenario was an effort to elicit incriminating statements and it lasted not just a few minutes, but it lasted really a day and a half.

Unidentified Justice: Suppose we disagreed with you that the second interrogation on the first day was improper and, therefore, the interrogation for the first half hour of the second day was proper.

Suppose that we agree to that.

If there hadn't been any prior interrogation at all, no prior claim of counsel at all, the interrogation in the automobile for the first half hour would have been perfectly all right after Miranda warnings.

Timothy J. Mc Greevy: The first half hour in the automobile under all of those various facts that you would suggest or assumptions, I would say, yes.

But, of course--

Unidentified Justice: Well, I know, but suppose we disagree with you that there was nothing wrong with anything that happened on the first day?

Timothy J. Mc Greevy: --All right.

Unidentified Justice: Then I would think the first half hour of interrogation was quite proper the second day.

Timothy J. Mc Greevy: Well, I don't agree, because the first day ended with a third request for counsel made that same day.

Unidentified Justice: At the end of... At the very end.

Timothy J. Mc Greevy: At the end of the second interrogation which is at the end of the first day.

Unidentified Justice: Okay.

Timothy J. Mc Greevy: This is the interrogation that had no Miranda rights.

Unidentified Justice: All right.

Timothy J. Mc Greevy: That one concludes with a very clear request.

Unidentified Justice: Right.

Timothy J. Mc Greevy: You will recall we mentioned earlier that according to the evidence Mr. Stumes is alleged to have said that the death was accidental.

He then goes on to indicate that he is not going to talk about it any more until he sees Steve, his attorney.

Unidentified Justice: Mr. McGreevy, have you finished answering Justice White?

Timothy J. Mc Greevy: I think I have.

Unidentified Justice: What I would like to ask is whether this Court has ever held before Edwards that once a defendant has requested the right to see counsel that the only subsequent event that would enable law enforcement to continue any discussions with him whatever was when the defendant himself initiated that discussion?

Prior to Edwards have we ever held that before?

Timothy J. Mc Greevy: Well, I may run into trouble with you, Mr. Justice, or perhaps one of your colleagues making a distinction between--

Unidentified Justice: Just cite the case.

Timothy J. Mc Greevy: --Pardon me.

Unidentified Justice: Just cite the case in which we held that.

Timothy J. Mc Greevy: Well, the problem I was having was between dicta and holding and I don't believe that I can tell you or that I can refer to a holding if you wish to use that particular term.

Unidentified Justice: Did Edwards cite any prior cases which we--

Timothy J. Mc Greevy: Well, certainly.

Edwards, of course--

Unidentified Justice: --Did it cite any prior cases?

Timothy J. Mc Greevy: --Yes.

Unidentified Justice: Which one?

Timothy J. Mc Greevy: Miranda.

Unidentified Justice: Miranda?

Timothy J. Mc Greevy: That is the key.

Unidentified Justice: Did Miranda hold that?

Timothy J. Mc Greevy: I think Miranda... My whole theory has been that we need never get to Edwards because Miranda says when counsel is requested, the police officers must stop questioning.

Unidentified Justice: Yes.

Timothy J. Mc Greevy: They even went on in Miranda to explain what the alternatives are that are available to the police.

They say in Miranda you don't need to have a jailhouse lawyer available or a policehouse lawyer available because you can make a decision that you are not going to get an attorney there right away, but just remember you can't interrogate until you do it.

Unidentified Justice: May I ask this?

Did Miranda overrule Zerbst?

It said you may waive almost any constitutional right.

You can certainly waive the right to have counsel when you are being interrogated.

And, Zerbst said that you look to all of the facts and circumstances.

Was that overruled in Miranda?

Timothy J. Mc Greevy: I don't believe so.

I believe that Miranda still permits a waiver, but I see Miranda as saying really... I think there are two kinds of waivers or a waiver at two levels that can take place.

When a suspect is advised of his rights, you have a right to have an attorney present, the suspect can at that time make a knowing, intelligent, voluntary waiver of that right and say, no, I don't want an attorney, I will talk to you.

That is a waiver.

You get a different waiver question, I really think, when that suspect has said I need my attorney.

Then he has, in effect, said I can't deal with you without help.

Unidentified Justice: Is there any case prior to Edwards that said that?

The answer is no.

You haven't been able to cite one.

Timothy J. Mc Greevy: I think that Miranda does, but I don't think I can say that it is holding in the strict sense of the word.

But, I think clearly--

Unidentified Justice: Do you think Miranda modified Zerbst?

It didn't say so.

Timothy J. Mc Greevy: --Well, I--

Unidentified Justice: Zerbst has been cited any number of times since.

Timothy J. Mc Greevy: --I am not sure how to respond to that.

The point that I wish to make with respect to Miranda is that... and I need to address just for a moment the retroactivity question if we ever reach that, if the Court reaches that question.

It seems to me that if we view Edwards as establishing a new principle, then it seems to me it was abundantly foreshadowed by Miranda, because Miranda said when they ask for counsel you quit questioning.

And, I think all Edwards did was reinforce that, give life to it, give vitality to it, and tell the authorities that you will abide, you will abide by that request.

So, that is the way I view it.

By way of conclusion, we do respectfully request on behalf of our client that the judgment of the Eighth Circuit in this matter be affirmed.

If there are no further questions, I have concluded my argument.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. McGreevy.

Do you have anything further, Mr. Meierhenry?

Mark V. Meierhenry: Very briefly, Your Honor.

As most courts are wont to do, most of the argument today had to do with how to apply Edwards retroactively and, of course, it is our strenuous objection, and I only rise to remind the Court that under the prior rules and teachings of this Court this is not an appropriate case to apply retroactively.

And, if it is not a proper case and you agree with the state, then obviously the Eighth Circuit must be reversed because it most certainly was proper under Miranda and any other case until the new Edwards rule was adopted in 1981.

ORAL ARGUMENT OF MARK V. MEIERHENRY, ESQ. ON BEHALF OF THE PETITIONER--REBUTTAL

Unidentified Justice: May I ask you, do you read the Edwards opinion itself as purporting to announce a new rule?

I have in mind specifically the sentence quoted on page 11 of your opponent's brief.

"We reconfirm these views, and to lend them substance. "

we do so and so after quoting from Miranda.

Mark V. Meierhenry: I believe it is a new rule.

I know we--

Unidentified Justice: That isn't my question.

Do you think the opinion in Edwards purported to announce a new rule?

Mark V. Meierhenry: --I believe it did.

Unidentified Justice: Is there language in the opinion that purports to adopt a new rule?

Why would they say "we reconfirm these views"?

That is purporting to announce a new rule?

Mark V. Meierhenry: I believe since then that other members of the Court have looked at it... not of this Court but of other courts have looked at it as a new per se rule.

It was certainly a new rule as far as those of us who must implement the decisions are concerned, absolutely new, and, therefore, I think it is a new rule and it should be given retroactive effect, because if it is not a new rule, then nothing should be reversed that happened in 1973.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, gentlemen, the case is submitted.