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ARTICLE: THE RETURN OF THE "CHRISTIAN BURIAL SPEECH" CASE, 32 Emory L.J. 349
SPRING, 1983
Author: Phillip E. Johnson *
* Professor of Law, University of California at Berkeley School of Law. Visiting Professor of Law, Emory University School of Law 1982-83. A.B., Harvard, 1961; J.D., University of Chicago, 1965.
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I. INTRODUCTION
If the police discover the body of a murder victim by unconstitutionally interrogating the suspected killer, must evidence derived from the corpse be suppressed as "tainted fruit" of the constitutional violation? That question was raised but not decided by the Supreme Court in the "Christian burial speech case," Brewer v. Williams. 1 This 1977 decision, one of the most important of the post-Miranda 2confession cases, held that a police officer violated a murder suspect's right to counsel by attempting to elicit incriminating statements from him after formal judicial proceedings had commenced, even though the officer did not literally "interrogate." The case has now returned to the Supreme Court for argument in the 1983 Term, 3 after a guilty verdict on retrial. It raises interesting and important questions concerning the scope of the "fruit of the poisonous tree" doctrine, and the proper balance to be struck between due process values and the desirability of convicting persons who commit horrible crimes. The case also comes to the Court with tantalizing suggestions from the defense that Williams, whose guilt was unquestioned at the time of the previous Supreme Court decision, might not have committed the murder after all.
What follows is in the nature of a roadmap to a complex and confusing case. The reader who knows a little about the case may find that some of what has been written about it is not true, and that there is a great deal more that is true and worth knowing.
Part II gives a history of the trials, appeals, and habeas corpus proceedings that have consumed so many years.
Part III discusses the legal issues in the current Supreme Court review, and
Part IV comments on the prospects for a retrial in the event that the Supreme Court once again overturns the conviction. I conclude with some observations about policemen, lawyers, and abstract principles.
II. THE HISTORY
A. The First Round
The crime occurred on Christmas Eve, 1968. 4 Ten-year-old Pamela Powers, attending an event with her family at the Des Moines, Iowa, YMCA, excused herself to go to the bathroom and never came back. About half an hour later, several persons saw Williams leave the YMCA carrying a blanket-wrapped bundle, which he placed in the front seat of his car. A boy who assisted him with the doors "saw two legs in it and they were skinny and white." Williams managed to drive away before other witnesses could see what he was concealing. 5 The police correctly concluded that the bundle contained Pamela's body.
Williams drove east across Iowa on Interstate 80. Police found his car abandoned in Davenport, near the Illinois border, and they also found the blanket and some of Pamela's clothing at a rest stop near Grinnell, between Des Moines and Davenport. 6 On December 26, Williams telephoned a Des Moines lawyer named McKnight, and surrendered to police at Davenport on McKnight's advice.
McKnight went to the Des Moines police station and spoke to Williams on the telephone from there after the surrender. Des Moines Police Chief Nichols and Captain Leaming were present, and heard McKnight's end of the conversation. McKnight told Williams that Captain Leaming would bring him back to Des Moines by car, that Leaming would not question him during the trip, and that he should not discuss the case with anyone until he could confer with McKnight. McKnight also told Williams that he would have to reveal the location of the body to the police after his return to Des Moines. Although no one testified that Leaming or Chief Nichols made any explicit promise not to question Williams on the return trip, various judges later decided that the police had agreed, perhaps by their silence, to McKnight's terms. 7 This is the background for the state trial court finding, later to assume great importance, 8 that the police dishonored a promise.
Captain Leaming and another officer went to Davenport and picked up the prisoner, who had been arraigned there on the murder warrant and repeatedly advised of his constitutional rights. Shortly after leaving Davenport on the 160 mile return trip, 9Leaming delivered his notorious "Christian burial speech," in which he urged "Reverend" Williams (an escaped mental patient with strong religious tendencies) to ponder the desirability of stopping en route to locate the body (before anticipated snowfall could conceal it) so that the girl's parents could give her a "good Christian burial." 10 Although the speech was not in the form of a question or demand for information, it clearly was intended to appeal to Williams' conscience and to influence him to show the police where he had hidden the body. It had this intended effect. Some hours later, as the car approached the Des Moines area, Williams took the officers to the body hidden in a ditch about two miles off the Interstate.
The state courts affirmed the resulting conviction for murder, 11 but the federal courts on habeas corpus concluded that Detective Leaming had violated Williams' Miranda rights and ordered a new trial. 12 When the State of Iowa took the case to the Supreme Court in the 1976 Term, many observers thought the Court might take the occasion to overrule the controversial Miranda doctrine itself. 13 Instead the majority opinion by Justice Potter Stewart surprised nearly everyone by brushing aside the Miranda arguments and reinvigorating the obscure doctrine of Massiah v. United States, 14 a case which had held that even noncoercive surreptitious questioning of an accused person after formal adversary judicial proceedings have commenced violates the Sixth Amendment right to counsel. 15 The Court's choice of the Sixth Amendment-based Massiah doctrine rather than the Fifth Amendment-based Miranda doctrine has been exhaustively analyzed by able scholars, including Professors Yale Kamisar, 16 Joseph Grano, 17 and Steven Schulhofer. 18 For present purposes this arcane distinction is probably unimportant: it is enough to say that five of nine Supreme Court Justices thought that Leaming violated Williams' constitutional rights by directing the Christian burial speech at him after he and his attorney had made clear that he did not wish to answer questions. Two of the Justices in the majority wrote concurring opinions emphasizing the violation of an "express agreement" by the police, 19 relying, of course, on the trial court findings to this effect. That brings us to the point most directly at issue now: What is the appropriate remedy for this violation?
Williams never confessed to the killing, but he implicitly admitted hiding the body by taking the officers to it. The fact that he led the police to the body had to be suppressed at any retrial, of course, but what about the body itself? Scientific evidence derived from the body established that the girl had been sexually abused and smothered. 20 Without this, there would have been nothing but a mysterious disappearance, linked inferentially to Williams' blanket-wrapped bundle. As it happened, the police found the body because Williams led them to it, but they might well have found it anyway. In lawyers' jargon, the body was within the "inevitable discovery" or "hypothetical independent source" exception to the "fruit of the poisonous tree" doctrine, if there is such an exception and if the body would have been discovered (in adequate condition for obtaining the scientific evidence) absent the constitutional violation. Whether the exception exists remains debatable to this day, but the Supreme Court majority in Brewer v. Williams gave the concept a helpful boost in a footnote at the close of its opinion. There was no basis, the footnote said, for the dissenters' fears that retrial would necessarily be futile:
While neither Williams' incriminating statements themselves nor any testimony describing his having led the police to the victim's body can constitutionally be admitted into evidence, evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams. Cf. Killough v. United States, 119 U.S. App. DC 10, 336 F.2d 929. In the event that a retrial is instituted, it will be for the state courts in the first instance to determine whether particular items of evidence may be admitted. 21
B. The Second Round
Of course, the state prosecutors took the hint. The new trial proceeded to another conviction for first degree murder and the Iowa Supreme Court affirmed in 1979, 22 eleven years after the crime. The Iowa Court concluded that the State had shown by a preponderance of the evidence that the body would have been found absent the defendant's admissions. 23
Williams had concealed the body beside a culvert in a ditch alongside a road in Polk County about two miles north of Interstate 80, the main highway across Iowa. Captain Leaming had quickly surmised that Williams had disposed of the body somewhere near the Interstate before he discarded the blanket and clothing. Search parties were organized to inspect all roads, ditches and culverts within seven miles north and south of the Interstate, beginning at the farthest likely point east and proceeding westward. The search had proceeded to the Polk County line, which was about two and one-half miles east of the location of the body. There it terminated, for reasons that are in dispute, at about the time that Williams agreed to show Leaming where he had placed the corpse. 24 After Leaming's discovery the search was never resumed, but an officer testified that the volunteer searchers would have continued into Polk County if necessary and would have inspected the ditch where the body was found. He claimed that the searchers would have found the body within a few hours, but the Iowa Supreme Court thought a longer delay would not have been critical, since the extreme cold of an Iowa winter would preserve a corpse until the spring thaws. 25
There could have been another reason for supposing that the body would not have remained hidden for long. McKnight had told Williams that he would have to reveal the location of the body when he got back to Des Moines, 26 and Williams himself repeatedly promised Leaming that he would "tell you the whole story" after he saw McKnight. 27 Justice Thurgood Marshall, concurring in the 1977 Supreme Court decision overturning the first conviction, surmised that McKnight planned to ask Williams the body's location in confidence, and then relay the information to the police in such a manner that Williams would not be admitting guilty knowledge. 28Of course, there was no commitment binding against either McKnight or Williams if they chose to reconsider. Upon further reflection McKnight might well have decided that it is not a defense lawyer's job to help the police find critical incriminating evidence. The subject of promises was a sore topic in any event, because Detective Leaming had supposedly broken his "promise" not to question Williams. In the circumstances, the Iowa Supreme Court did not speculate on what help the defense might have given the search parties if things had turned out otherwise. 29
Although the scientific evidence derived from the body was admitted at the second trial, the fact that Williams had conducted the police to it was of course excluded pursuant to the 1977 Supreme Court decision. 30 Absence of this implied admission was unimportant, however, because the defense conceded that Williams had carried the body from the YMCA and concealed it in the ditch. The defense theory was that someone else had killed the girl and planted the body in Williams' room at the YMCA. Assuming he would be blamed, Williams panicked and fled with the body. 31 This is precisely the story we would expect a guilty defendant to invent in the circumstances but, according to the federal Court of Appeals, "the theory is not so far-fetched as it sounds." 32
It is important to go into the facts bearing on factual guilt even though that question is theoretically irrelevant to the constitutional issue before the Supreme Court. All the Supreme Court dissenters in 1977 emphasized that the defendant was unquestionably guilty of a horrible crime, 33 and Justices in the majority dropped some not-very-subtle hints that they assumed that something would be done to prevent the release of a dangerous sex killer. 34 On the other hand, Judge Arnold's opinion for the federal Court of Appeals granting habeas corpus on the second round went out of its way to explain that Williams' guilt was "not undisputed." 35 Williams is a black man, a drifter, and an escaped mental patient, who was accused of a horrible murder of a white child and tried before an all-white jury. That such a person could be mistakenly convicted on circumstantial evidence is a distinct possibility. If some members of the Supreme Court suspect that this may have occurred, they may be inclined to look with favor on whatever claims of procedural error are presented. 36
Due to broadened discovery rights, the defense attorneys for the second trial obtained certain reports from the prosecution that were not provided at the first trial. These included a report that, although acid phosphatase (a component of semen) was found in the girl's body, no traces of spermatazoa were present. 37 This suggested that the rapist might have been sterile, and Williams was not sterile when tested in 1977. Ironically, the disputed corpse thus became a prime source of evidence for the defense.
The defense had a prime candidate for the role of alternate suspect: one Albert Bowers, a janitor who was employed cleaning washrooms at the YMCA at the time Pamela disappeared during a trip to a washroom. 38 A witness named Boucher, also living at the YMCA, gave a deposition in which he described hearing an altercation from Bowers' adjoining room at about the time of the murder, after which Bowers made furtive preparations to depart. 39 Bowers had died in an automobile accident in 1971, but his remains were exhumed and examined for evidence of sterility before the second trial. 40 The medical report was not officially disclosed, but it must have been disappointing to the defense because Bowers' name was not mentioned at the trial. 41 The defense argued that the killing could have been committed by an unidentified sterile man who then left the body in Williams' room. Williams himself did not testify on the merits at either trial, although he did testify at the suppression hearings. 42
The affirmance of the second conviction in the state courts led to a new round of federal habeas corpus. The District Court denied relief, 43 but the Court of Appeals for the Eighth Circuit once again overturned the conviction. 44 The Court of Appeals assumed argumendo that an inevitable discovery exception of some sort exists, and also that the body would have been discovered absent the constitutional violation. 45 The Iowa Supreme Court had conceded, however, that the inevitable discovery exception applies only when the police did not act "in bad faith for the purpose of hastening the discovery of the evidence in question." 46 The Iowa court had then passed rather lightly over the "bad faith" question, reasoning that Leaming must have acted in "good faith" because about one half of the judges who had ruled on the case, including the four dissenting Supreme Court Justices, had found no fault with what he did. 47
Not so, said the federal Court of Appeals; the fact that four Justices approved the conduct does not establish that the officer acted in good faith. The State had the burden of proof on the issue, and it introduced no testimony by Leaming or anyone else as to whether he had believed he was acting within the Constitution. On the contrary, at oral argument "the State did not question that Leaming broke his word, or that he deliberately and designedly set out to obtain incriminating information." 48 Whatever the dissenters may have thought, the majority and concurring opinions in the Supreme Court had referred to Leaming's conduct as a "clear" violation of the established Massiah doctrine, as exploitation of "psychological coercion," and as involving a situation in which police officers dishonored a promise to a lawyer and "deliberately took advantage of an inherently coercive setting in the absence of counsel, contrary to their express agreement." 49The Court of Appeals thought that breaking the promise might have been justified if Leaming had hoped to find the girl alive, but he had never suggested that this was a possibility and any such hope must have been forlorn after two days of exposure to freezing temperatures. 50 The court then went on to note that Leaming had been told that defense counsel would reveal the location of the body, but he did not wish to wait. 51 Not only did he break his promise but, in a further display of bad faith, he denied making the promise in the first place. 52 Because the State had failed to show that Leaming acted in good faith -- i.e., in the belief that his actions were lawful -- the "inevitable discovery" exception did not apply and evidence derived from the body ought to have been excluded.
The Supreme Court granted a writ of certiorari on May 31, 1983. 53 The Court that will decide the Williams case (probably in Spring 1984) for the second time differs in one significant respect from the Court that sat in 1977. Justice Potter Stewart, who authored the majority opinion and who was a crucial "swing" vote on criminal procedure issues for many years, has been replaced by Justice Sandra O'Connor, a relative conservative. Presumably the Court will not reopen the question decided in 1977, but any Justice who is doubtful about whether a constitutional violation occurred is likely to be unenthusiastic about requiring a sweeping remedy.
The Supreme Court of the United States is no exception to the general rule that human behavior is hard to predict, and the Court previously granted certiorari in this very case only to end up affirming the Court of Appeals, but it is unlikely that any Justice would have voted to hear the case a second time unless he or she means to reverse. If the Court does reverse the Court of Appeals and reinstate the conviction, it can do so on any of a number of grounds. It can decide that there is no "bad faith" exception to the inevitable discovery doctrine, or that Detective Leaming acted in good faith, or even that the "fruit of the poisonous tree" doctrine does not apply to Massiah or Miranda violations. There is also the question, passed over in the prior decision, of whether federal habeas corpus relief is available to challenge the use of physical evidence which was discovered by means violating a defendant's Sixth Amendment right to counsel. The Attorneys General of over forty states have joined in an amicus curiae brief asking the Court to extend the doctrine of Stone v. Powell54 to bar federal habeas corpus review of state court convictions on this type of constitutional question.
On the other hand, the Court could surprise us and once again throw out the conviction. It could hold that there is no "inevitable discovery" exception to the exclusionary rule, or that the exception is inapplicable because Captain Leaming knew or should have known that he was violating the suspect's constitutional rights. If the Court is willing to go behind the findings of the Iowa Supreme Court and the federal District Court and look at the evidence itself, it may even find that there are grounds for doubting that the body would inevitably have been discovered. That bring us to the present, and a closer look at the legal issues.
III. THE SECOND ROUND IN THE SUPREME COURT: ISSUES AND PROSPECTS
There is every reason to expect that the Supreme Court will recognize an "inevitable discovery" or "hypothetical independent source" exception of some sort. The footnote previously quoted from the 1977 decision 55 does not unequivocably state that there is such an exception, but it seems to assume so. Most courts that have ruled on the question have endorsed the exception in some form, seeing it as a logical extension of the long-recognized "independent source" doctrine. 56 To be sure, any limitation on the rule that evidence obtained unconstitutionally must be excluded tends to weaken the "deterrent effect" 57 by encouraging the police to hope that "they" (i.e., the law enforcement interests of society) may benefit from unconstitutional activity, but the exclusionary rule has nevertheless been severely restricted, and the tendency is for the restrictions to grow. 58
Indeed, the "inevitable discovery" exception is easier to defend in principle than some other well-recognized exceptions to the exclusionary rule -- the standing limitation, for example. When the police are allowed to use against B evidence which they obtained by flagrantly violating the constitutional rights of A, such violations are thereby encouraged. 59 In contrast, a properly administered inevitable discovery exception gives the authorities only what they would have had if they had not violated the Constitution. The italicized qualification is significant, however. Judges have a great deal of leeway when they are speculating about the answers to hypothetical questions. Some courts may resolve all doubtful questions of inevitable discovery in favor of admissibility, so that evidence whose independent discovery was far from inevitable may come in anyway. The difficulty of curbing this tendency is a legitimate argument against recognizing the exception at all, but such an argument is likely to be persuasive only to persons who are more enthusiastic about controlling police conduct by excluding evidence than the Supreme Court majority has been in recent years.
Assuming that an "inevitable discovery" exception exists, what are its boundaries? The Iowa Supreme Court held that the prosecution must prove that the evidence would (not "might") have been discovered by lawful means absent the constitutional violation, but that it need show this only by a preponderance of the evidence. 60"Would have discovered" thus means "would more likely than not have discovered," a formulation not so different from "might have discovered." This is consistent with the burden of proof on some similar questions, 61 although one could argue that a more stringent burden is appropriate given the presumed temptation to resolve doubtful hypothetical questions in favor of admitting evidence. As we have seen, the Iowa Court added another requirement, which became central to the eighth Circuit's decision on habeas corpus. The inevitable discovery exception was to be available only where "the police have not acted in bad faith to accelerate the discovery of the evidence in question." 62
The Iowa court took this "good faith" limitation from Professor Wayne LaFave's influential treatise on search and seizure. 63 In endorsing the quoted formulation, proposed originally in a student law review note, 64 LaFave was primarily concerned with a recurring situation involving search warrant procedures. Suppose that police officers have probable cause to search a dwelling, and send one of their number to obtain a warrant. They may be tempted to go ahead and search the premises without waiting for the warrant to issue, even when there are no exigent circumstances to justify such haste, reasoning that a court will overlook any premature entry since the evidence would "inevitably" have been discovered by the lawful search that would have occurred when the judge issued the warrant. To ensure that the officers will wait for the warrant, LaFave reasoned that the evidence discovered prematurely ought to be excluded regardless of what would have happened under the warrant. 65
LaFave's concern was that enforcement of the warrant requirement might be undermined by an unthinking application of the inevitable discovery exception, because whenever the police search with probable cause they arguably could have obtained a warrant. Perhaps a special proviso is needed to ensure that recognition of the inevitable discovery exception does not encourage the police to ignore the warrant requirement, but it does not follow that there should be a broad doctrine making the exception inapplicable in all cases involving "bad faith," however defined.
Regardless of good or bad faith, we do not ordinarily "punish" the police when they violate the Constitution by suppressing evidence that they obtained independently. All we do is to take away the evidence that they obtained unlawfully, so they are placed in the same position that they would have been in if they had obeyed the Constitution. In this sense the exclusionary rule is better described as a "disincentive" than as a "deterrent". 66 If we assume that the police would have found Pamela's body even if Captain Leaming had not obtained any information from the defendant, then to suppress evidence derived from the body does much more than to deprive the State of the "fruits" of an officer's illegality.
Having raised this point I will pursue it no further, however, because there will be no need for the Supreme Court to set out a general rule for dealing with "bad faith" cases unless it agrees with the Court of Appeals that Detective Leaming acted in bad faith. For reasons I am about to explain, that finding will be powerfully attacked.
"Bad faith" is not a self-defining concept. If we assume that constitutional rules are on the whole reasonable, there will usually be a certain degree of fault on the part of an officer who is found to have violated them. Presumably, bad faith means something more than that the officer acted in a manner that a court has found, in retrospect, to have been unreasonable, or coercive. In this instance, moreover, the question is not whether the officers' faith was so "good" that the exclusionary rule is altogether inapplicable, 67 but whether it was so "bad" that the courts will exclude evidence that would have been found by other officers lawfully. What does "bad faith" mean in this context?
The Iowa Supreme Court, which brought up the bad faith limitation in the first place, thought that Leaming must have acted in good faith because about half the judges, state and federal, who ruled on the issue found his actions lawful. 68 The proposition that it is not bad faith for a police officer to take the majority position on a closely debated legal question is at first glance a persuasive one. As we have already seen, the federal Court of Appeals nonetheless disagreed: Leaming must have known he was violating not only the defendant's right to counsel, but also his own independent promise not to interrogate, when he took advantage of an "inherently coercive" situation by delivering the Christian burial speech. The court thus equated bad faith with knowing or reckless disregard of legal standards.
Leaming himself never testified on the good faith issue. This is not a great loss, because we can better determine a person's state of mind by inferring it from his actions than by relying on his subsequent self-serving explanations. 69 Whether Leaming acted in bad faith depends on the meaning we choose to assign to that term, not upon how we resolve any conflicts or ambiguities in the evidence. Leaming acknowledged that he had delivered the Christian burial speech in the hope that it would induce Williams to tell him where the body was, after Williams had made it clear that he wished to consult with McKnight before giving this information. In this sense, he was trying to "get around" the Miranda restrictions and to accomplish the very thing that defense lawyers aim to prevent. If this is bad faith, then bad faith is what he had.
On the other hand, it is equally plain that Leaming meant to learn where the body was hidden through means that he thought, however mistakenly, to be constitutional. If he had been truly reckless of constitutional standards, he would not have been so careful to restrict himself to the indirect means he in fact employed. Not only did he carefully refrain from "questioning," but he seems to have made no effort to persuade Williams to confess to the killing. Perhaps it is fair to say that he took a crabbed and legalistic approach to the word "interrogation," but then so did the four Supreme Court Justices who agreed with him, and the six Justices who voted to affirm a conviction on similar facts in Rhode Island v. Innis. 70 Were they all acting in bad faith?
A person who knows he has acted wrongly or unlawfully will often be evasive when questioned about his conduct afterwards. Judge Arnold's opinion for the federal Court of Appeals characterized Leaming as an evasive witness because he denied making an agreement with McKnight, because he contradicted a Davenport lawyer on two other matters, and because the state trial judge believed the lawyers and not the police officer on all of these disputed points. 71 "These are not the actions," concluded Judge Arnold's opinion, "of a man who believed he was doing the right thing, only to be confounded later on by a close vote on a question of law." 72
The Court of Appeals opinion is particularly vulnerable on this subject, because Leaming's testimony denying the existence of an agreement was literally uncontradicted. Despite the trial court's finding, it is clear that the famous "agreement" was neither express nor explicit; it was at most an implied understanding. 73 Professor Yale Kamisar made an exhaustive examination of the testimony and concluded that "the record does not show an explicit agreement or even that McKnight directly instructed Chief Nichols or Captain Leaming that Williams was not to be questioned on the return trip." 74 Kamisar explained that "Apparently both the trial court and federal district court concluded that by their silence the Des Moines police 'agreed' to 'go along' with McKnight on this matter." 75 Such a finding hardly proves Leaming to be a liar.
There is an even stronger reason for challenging Judge Arnold's portrayal of Leaming as an evasive witness. The fact is that Leaming brought up the Christian burial speech himself in his testimony when he could easily have concealed it. Once again, I will quote Professor Kamisar's conclusion:
The first time Captain Leaming testified, all he said on direct examination about the Christian burial speech was that shortly after they got on the expressway, he and Williams had "had quite a discussion relative to religion." That's all. Only on cross-examination did Leaming reveal for the first time -- and he more or less volunteered it -- that he had made a Christian burial statement. Williams, who had preceded the captain to the witness stand, had never alluded to anything resembling the Christian burial statement. If it had not happened to pop out on Leaming's cross-examination -- and it came out more or less accidentally -- there never would have been a "Christian burial speech case." 76
I would say that this is the act of a man who believed he was doing the right thing, only to be confounded later on by a close vote on a question of law.
If we assume that an inevitable discovery rule exists, and that the "bad faith" claim rests on a misreading of the record, there remains the question whether and when the body would have been found if Williams had not led the police to it. The Iowa Supreme Court found without dissent that the body would have been discovered in essentially the same condition as it was when it was actually discovered. 77 The federal District Court made a similar finding, taking into account evidence which Williams' habeas corpus attorney had discovered after the state decision. 78 It is highly unlikely that the Supreme Court will disturb this unanimity by undertaking its own examination of the evidence, but to support an argument that having an inevitable discovery exception is not a good idea in the first place, one or more of the Justices might assert that the finding is questionable. There is some support in the record for such an assertion, but it is difficult to say how much.
The reader will recall that the search for Pamela Powers' body stopped at the eastern border of Polk County shortly before Williams led Leaming and other officers to the body at a spot about two and one-half miles farther west. 79 The officer who was supervising the volunteer searchers testified (at the suppression hearing before the second trial), that the search would otherwise have continued into Polk County and that the searchers were instructed to get out of their cars and look into culverts. 80 Photographs seemed to show the body plainly visible at the end of a culvert under a side road about two miles from the Interstate. 81 On this evidence, the Iowa Supreme Court's determination that the in-progress search would have discovered the body seems entirely reasonable.
But there is a bit more to it than that. On his habeas corpus petitions (but not his trials), Williams has had the benefit of an exceptionally knowledgeable and resourceful attorney, Professor Robert Bartels. In preparing for the second round habeas corpus petition, Bartels found an earlier photograph which showed the body as it appeared before the police removed snow and otherwise altered the scene. His brief characterizes the largely snow-covered body in this photograph as "barely discernible." 82 I have not seen the photograph and cannot say, but this characterization is supported by undisputed testimony that the officers had difficulty finding the body even after Williams led them to the spot. 83 Bartels also pointed to photographs taken from the road which do not show the culvert itself as visible. 84 The searchers would have left their car only if they had seen a culvert or other likely hiding place from the road. 85
And that is not quite all. Law enforcement reports written at the time of the search specify only a search of the two counties east of Polk; apparently there were no specific plans to extend the search into Polk County. 86 From these reports one could infer that the search terminated at the Polk County line on December 26, 1968, because it was meant to end there, and not because Captain Leaming had obtained Williams' cooperation.
It is difficult to say what to make of this, other than that it illustrates the well-known difficulty of giving definite answers to hypothetical questions. The federal District Court was not overly impressed with the new evidence, observing that the "newly discovered evidence neither adds much to nor substracts much from the suppression hearing evidence." 87 I would not characterize that as a satisfying response to the petitioner's contentions, but I am not sure what a satisfying response would be. I am sure that there would have been some kind of renewed search after December 26, and it would have been directed specifically to the area of the Mitchellville turnoff, where in fact the body was found. One can be positive of this because Captain Leaming had shrewdly guessed that the body was near Mitchellville and had told Williams that he "knew" it was there. 88 His reasoning was excellent. He knew that the fugitive would be in a hurry to dispose of this highly incriminating evidence, and Mitchellville was the first inviting rural spot east of the Des Moines metropolitan area. 89 Captain Leaming would certainly have organized a thorough search of this area, although it cannot be said with equal certainty that the searchers would have found the body in the snow.
In all likelihood somebody would have found the body eventually, after the snows melted if not before. The question is when and in what condition, and what effect any deterioration in its condition would have had upon the prospects for convicting Williams.
The prosecution used scientific evidence derived from the body to prove that the girl was sexually abused and smothered; the defense used the same evidence to show that the assailant may have been sterile. Which side had the most to lose from possible decomposition?
For that matter, which side would have had the most to lose if the body were never discovered? A lawyer's first impulse is to say the prosecution, because it is difficult to prove murder without a corpse. But in some circumstances the corpus delicti of murder -- death of the victim by criminal means -- can be established by circumstantial evidence. There are a number of cases affirming convictions of murderers who successfully disposed of the physical remains. 90 In the Williams case the prosecution could have shown that a child mysteriously disappeared, that the defendant almost immediately thereafter left the building in haste with what appeared to be a child's body wrapped in a blanket, that he drove eastward in an apparent flight to avoid arrest before surrendering, and that he abandoned the blanket, some of the victim's clothing, and his own blood and semen-stained clothing at a rest stop along his escape route. 91 I doubt very much that a state court would grant a directed verdict for the defense on this evidence. The defense would have to hope for a jury with very liberal views about the presumption of innocence and the impropriety of drawing inferences from a defendant's silence.
We know that the attorney McKnight and the defendant intended, or said they intended, to reveal the body's location after they had a chance to confer. 92
Although it might seem that such gratuitous assistance to the prosecution would violate a defense lawyer's duty to protect his client's interests, there could have been good reasons for cooperating to this extent.
If the defense theory were either that someone else killed the girl and left the body in the defendant's room, or that Williams killed her while legally insane, the defense would have to admit eventually that Williams left the YMCA with the body. The defense could wait and keep its options open, but not without risk. If Williams really was claiming innocence, for example, his lawyer would have to consider the possibility that a prompt autopsy might reveal evidence helpful to the defense, as in fact it did. An appearance of candor and cooperation would be helpful to a defendant who had to persuade people to believe a fantastic sounding theory. For all these reasons, defense counsel could reasonably have concluded that it was in his client's interest to tell the police where the body was hidden.
IV. THE PROSPECTS FOR RETRIAL
Suppose the Supreme Court affirms the judgment of the Court of Appeals, and orders a retrial without the evidence derived from the body. For reasons previously explained, the prosecution would probably be able to establish a prima facie case of murder on circumstantial evidence. That evidence would be extremely stale, of course, but the memories of faltering witnesses can be refreshed by their prior statements, and transcribed testimony from the earlier trials can substitute for the testimony of those who have died. A retrial would not be technically impossible.
But consider how such a trial would have to be managed. The Williams case has been news in Iowa for a good many years, and it would be front-page news again if it were set for trial after a second Supreme Court decision. Could twelve jurors be found who know nothing about the history of the case? Could they be kept ignorant throughout the trial? Would they be told that the body was never found, or led to believe that no one ever bothered to look for it?
Imagine the position of defense counsel, arguing to the judge for a directed verdict or to the jury on reasonable doubt. Would he claim that, the body never having been found, Pamela may be alive today and living somewhere under an assumed name at the age of 26? Or would he introduce the autopsy evidence himself in support of the "sterile rapist" theory, and thus bring the body right back into the case?
Perhaps at a third trial Williams himself would at last give an account of how he came to be in possession of a corpse. The reader may already have wondered why Williams did not testify at either trial, given the defense theory. Judges and prosecutors are not allowed to comment in court upon a defendant's decision not to take the stand, but this rule does not extend, as far as I know, to comments by professors in law journals. So I ask the obvious question: is it conceivable that an innocent man would not take the stand to explain how he happened to be leaving the YMCA with the body of a very recently murdered child?
As it happens, Williams himself has apparently been asking the same question. In his appeal of the second conviction to the Iowa Supreme Court, Williams argued that his team of three defense lawyers ineffectively represented him when they unanimously advised him not to testify. 93 His decision to accept their advice was made part of the record at a conference in the Court Reporter's office with the judge not present. 94
The story of why he did not testify is every bit as fascinating as the story of how he came to tell Captain Leaming about the body. It seems that counsel told Williams that there were considerations on both sides. On the one hand, counsel thought that jurors traditionally like to see the defendant take the stand. On the other hand, the fact that he had been "in a mental institution" might come out if he testified, and a Dr. Gambill "could come here to testify." All these considerations had been explained to Williams in detail at a prior conference at which one of the lawyers had argued the case for the defendant testifying. On balance, all three lawyers felt that he should not testify, and Williams himself agreed.
To understand the issue of ineffective representation more facts are needed. According to newspaper accounts, Williams was charged with statutory rape in Missouri in 1965 in connection with sexual incidents involving two small girls. 95The presiding magistrate found him not guilty by reason of insanity and ordered him committed to a mental institution. He was eventually transferred to an open ward, from which he walked away on July 4, 1968. 96
And there is more. The aforementioned Dr. Gambill interviewed Williams by court order in April, 1969, to determine if he was competent to stand trial. Here is how Appellant's brief in the Supreme Court of Iowa described that interview:
At the beginning of the interview, Dr. Gambill told Defendant that this conversation would not be confidential, and that it could be reported to the Court. During the interview, Dr. Gambill asked for and received Defendant's version of what occurred on the day of the crime, a version which was exculpatory with regard to whether Defendant had killed the victim. However, Defendant also related to Dr. Gambill a different version than he had previously told to his attorney, Mr. McKnight, a version which involved the Defendant's luring a young girl to his room and then molesting her, killing her, and carrying her out. Defendant explained that he had given McKnight this version because Mr. McKnight had goaded him into it. Dr. Gambill had learned of this version from Mr. McKnight himself, and had asked Defendant about it directly. Dr. Gambill also testified that he had concluded that Defendant did not trust Mr. McKnight. 97
I agree with counsel's judgment that disclosure of this information to the jury would be extremely damaging to the defense. But was any of this admissible to impeach the defendant's testimony? Williams' main appellate counsel (who as trial counsel had joined in the advice) argued that none of it could have come in. Citing a number of state and federal cases, the brief argued that the circumstances of the mental commitment related to sexual assaults and thus had "no real bearing on credibility," 98 that due process would not permit the contents of the psychiatric interview to be used against the defendant on the merits, 99 and that it was an "incredible violation of the attorney-client privilege" for McKnight to tell the doctor that his client had admitted the killing. 100 The brief acknowledged that Harris v. New York101 had held that some unconstitutionally obtained evidence that may not be used to prove guilt may be used to impeach, but it argued that Harris applies only to statements obtained in violation of the Miranda rule, and not to "a due process, attorney-client privilege, or right-to-counsel violation." 102 In any event, trial counsel ought to have asked the judge to rule on the admissibility of these items before deciding whether the defendant would testify. 103
There is no reason to go into these arguments in detail, because the claim of ineffective representation is not presently before the Supreme Court or any other court. If we take this claim at all seriously, however, we must suppose that Williams means to take the stand if he has another opportunity, assuming that the prosecution is able to make out a prima facie case, and assuming that the judge agrees to exclude the devastating impeachment material that caused him to stay off the witness stand previously. If he does testify, the case may take a surprising turn. I am sure that the prosecutor will want to make the point that the defendant has had more than 15 years to come up with an exculpatory story, and that the jury should not credit so belated an account. But Williams never displayed any particular reluctance to tell what he knew. He promised Captain Leaming that he would tell the whole story as soon as he obtained McKnight's permission, and he has kept silent since then only because he has been virtually ordered to do so by a succession of defense attorneys. "What a shame," I can imagine counsel explaining to the jury, "that this man fell into the hands of game-playing lawyers and a legal system that is single-mindedly bent on suppressing evidence and keeping suspects silent. If only he had been encouraged to tell his story from the beginning, prompt investigation of it might have led to the arrest of the guilty party and saved an innocent man from wrongful impresonment."
V. CONCLUDING REFLECTIONS
Judge Arnold, who wrote the opinion for the Federal Court of Appeals throwing out the conviction a second time, realized that many people would consider it absurd to show so much concern about Captain Leaming's speech and so little concern about punishing the murderer of Pamela Powers. The judge replied to this anticipated criticism at the end of his opinion:
It will inevitably be remarked that our opinion focuses more on the conduct of the police than of the alleged murderer. If Williams is indeed guilty, and if he goes free as a result of our holding, then complete justice may not have been done, even though Williams has served 14 years in prison. A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced. 104
This passage is splendid as rhetoric, but I wonder if such a single-minded determination to keep local law enforcement officials "in their place" is any more satisfactory than its mirror image, the determination to convict the guilty no matter what the cost to other values. Federal judges are government servants too, but unlike policemen they have authority to make up the rules as well as apply them, and so it is doubly important that they cultivate self restraint and good judgment. Overturning the Williams conviction the first time could be justified as a dramatic means of drawing a line between permitted "conversation" and forbidden "interrogation." That decision imposed very tangible costs on the State of Iowa, and I am sure it imposed heavy intangible costs on the family of the murdered girl. It also gave Williams an enormous benefit, although not the benefit the Supreme Court had in mind. He obtained another chance at acquittal on the merits, with a much better prepared defense. The question after all this history is not whether there ought to be an appropriate remedy for constitutional violations, but why the remedy already granted was not sufficient.
The fact that constitutional law is complex and technical suggests to me that it should be enforced with a sense of proportion. Granting that Captain Leaming crossed a certain line that the Supreme Court has drawn, and even granting that he ought to have known better, his misdeed was what we criminal lawyers call malum prohibitum, rather than malum in se. Legalisms aside, what he did was to appeal to the conscience of a suspected murderer to do the only decent and honorable thing: to reveal where he had hidden the body, so the police could recover it and return it to the grieving family for burial. Perhaps the police ought not to be allowed to make such an appeal to a suspect in their custody, but in my opinion somebody ought to do it.
malum prohibitum (plural mala prohibita)
1. (law) An action that is not inherently evil, but is nevertheless illegal only because prohibited, as opposed to malum in se. A malum prohibitum offense is something that is wrong only because a statute makes it so, or by consensus that society agrees to prohibit the act, and is typically regulatory in nature and often result in no direct injury or danger to the person, entity, or property but only merely create the danger or probability of it which the statute attempts to minimize. Used
malum in se (plural mala in se)
1. (literally) A wrong in itself; that which is injurious in its consequence.
We have stringent rules governing police interrogation of suspects for good reason. Not so long ago, the "third degree" was a standard and acknowledged police investigative tool. Suspects were arrested and rearrested on flimsy grounds, kept awake while relays of questioners wore them down, stripped naked and threatened with beatings, pressured, cajoled, and tricked into confessing. The characteristic vice of dedicated policemen is that they tend to see themselves as fighting a war against the criminal elements of society. From this it is only a short step to the conclusion that the end justifies the means. The courts are entirely right to take strong measures to keep this mentality in check.
But we lawyers, a class which includes judges, also have our characteristic faults. One of these is a tendency to make a fetish of procedure, so that the merits of a dispute become obscured in an endless tangle of arguments about how the dispute ought to have been resolved. Another is a tendency to become captured by our own abstractions, so that we push every principle to the limits of its logic and sometimes beyond. Society has police to protect it from thieves and murderers, and it has lawyers to protect it from the police. No one has yet discovered how to protect society from the lawyers.
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