| Brewer v. Williams
(No. 74-1263)
___ |
|||||||
|---|---|---|---|---|---|---|---|
| Syllabus
| Opinion
[ Stewart ] | Concurrence
[ Marshall ] | Concurrence
[ Powell ] | Concurrence
[ Stevens ] | Dissent
[ Burger ] | Dissent
[ White ] | Dissent
[ Blackmun ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version |
Brewer v. Williams
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
MR JUSTICE MARSHALL, concurring.
I concur wholeheartedly in my Brother STEWART's opinion for the Court, but add these words in light of the dissenting [p407] opinions filed today. The dissenters have, I believe, lost sight of the fundamental constitutional backbone of our criminal law. They seem to think that Detective Leaming's actions were perfectly proper, indeed laudable, examples of "good police work." In my view, good police work is something far different from catching the criminal at any price. It is equally important that the police, as guardians of the law, fulfill their responsibility to obey its commands scrupulously. For, "in the end, life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves." Spano v. New York, 360 U.S. 315, 320-321 (1959).
In this case, there can be no doubt that Detective Leaming consciously and knowingly set out to violate Williams' Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination, as Leaming himself understood those rights. Leaming knew that Williams had been advised [p408] by two lawyers not to make any statements to police until he conferred in Des Moines with his attorney there, Mr. McKnight. Leaming surely understood, because he had overheard McKnight tell Williams as much, that the location of the body would be revealed to police. Undoubtedly Leaming realized the way in which that information would be conveyed to the police: McKnight would learn it from his client, and then he would lead police to the body. Williams would thereby be protected by the attorney-client privilege from incriminating himself by directly demonstrating his knowledge of the body's location, and the unfortunate Powers child could be given a "Christian burial."
Of course, this scenario would accomplish all that Leaming sought from his investigation except that it would not produce incriminating statements or actions from Williams. Accordingly, Leaming undertook his charade to pry such evidence from Williams. After invoking the no-passengers rule to prevent attorney Kelly from accompanying the prisoner, Leaming had Williams at his mercy: during the three- or four-hour trip, he could do anything he wished to elicit a confession. The detective demonstrated once again "that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.'" Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
Leaming knowingly isolated Williams from the protection of his lawyers, and, during that period, he intentionally "persuaded" him to give incriminating evidence. It is this intentional police misconduct -- not good police practice -- that the Court rightly condemns. The heinous nature of the crime is no excuse, as the dissenters would have it, for condoning knowing and intentional police transgression of the constitutional rights of a defendant. If Williams is to go free -- and, given the ingenuity of Iowa prosecutors on retrial or in a civil commitment proceeding, I doubt very much that there is any chance a dangerous criminal will be loosed on the streets, the [p409] bloodcurdling cries of the dissents notwithstanding -- it will hardly be because he deserves it. It will be because Detective Leaming, knowing full well that he risked reversal of Williams' conviction, intentionally denied Williams the right of every American under the Sixth Amendment to have the protective shield of a lawyer between himself and the awesome power of the State.
I think it appropriate here to recall not Mr. Justice Cardozo's opinion in People v. Defore, 242 N.Y. 13, 150 N.E. 585 (126), see opinion of THE CHIEF JUSTICE, post at 416, and n. 1, but rather the closing words of Mr. Justice Brandeis' great dissent in Olmstead v. United States, 277 U.S. 438, 471, 485 (1928):
In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.