Greenwald v. Wisconsin/Dissent Stewart

Mr. Justice STEWART, with whom Mr. Justice HARLAN and Mr. Justice WHITE join, dissenting.

I cannot agree that the petitioner's confession was involuntary as a matter of law. When he was taken to the police station for questioning he was nearly 30 years old and was by no means a stranger to the criminal law. He was questioned for little more than an hour one evening and for less than four hours the next morning. He was neither abused nor threatened and was promised no benefit for confessing. The Court says that the officers did not tell him about his 'constitutional rights.' But what the Court fails to mention is that the petitioner himself testified that, during his interrogation, 'he knew he had a constitutional right to refuse to answer any questions, * *  * he knew anything he said could be used against him, and *  *  * he knew he had a constitutional right to retain counsel.' 35 Wis.2d 146, 151, 150 N.W.2d 507, 509. Moreover, although the Court's opinion might convey a contrary impression, the petitioner himself testified that at no time between his arrest and his confession did he express to anyone a desire for food or for medication.

The judge who conducted the pretrial hearing held that the State had the burden of proving 'beyond a reasonable doubt' that the petitioner's decision to confess was the product of his own unfettered will. Applying this standard, the judge found that the 'totality of the circumstances' confronting the petitioner was not 'coercive in any physical or psychological respect' and that he had made a 'free and deliberate choice to admit his guilt.' These findings were reviewed and affirmed by the Supreme Court of Wisconsin in a conscientious and thorough opinion. 35 Wis.2d 146, 150 N.W.2d 507.

Given the evidence on which the conclusions of the state courts were based, it is not surprising that the petitioner has completely abandoned any claim that his confession was coerced. That claim is advanced here not by the petitioner but by this Court, which has not only raised the issue on its own motion but decided it in the petitioner's favor, without giving Wisconsin any opportunity to brief or argue the question on the merits.