Moore v. Michigan/Dissent Burton

Mr. Justice BURTON, with whom Mr. Justice FRANKFURTER, Mr. Justice CLARK and Mr. Justice HARLAN concur, dissenting.

The Court's decision rests upon its view that, despite the contrary conclusions of the Circuit and Supreme Courts of Michigan, petitioner has shown that he was in fact so alarmed that he was not able freely, intelligently and understandingly to plead guilty and to waive his right to counsel. But for that issue, this case should be summarily affirmed on the authority of Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188, which dealt with a comparable situation that arose before the same trial judge under like procedure.

The only contemporaneous evidence as to petitioner's attitude and equanimity at the time of his trial, in 1938, is the statement which Circuit Judge Weimer made while presiding at the trial. He made it following his private interview with petitioner, and immediately preceding his acceptance of petitioner's plea of guilty. He portrayed petitioner as having, in that interview, 'very calmly; without any compulsion whatever' 'freely and voluntarily' discussed his crime, his guilt and 'his one desire * *  * to have it all over *  *  * .' When making this statement the judge's attention was focused directly upon his responsibility to determine the capacity of petitioner to plead guilty and to waive his constitutional privileges. The statement accordingly commands respect and is entitled to great weight.

By 1950, Judge Weimer had died and the prosecuting attorney, who had conducted the trial for the State, had suffered a stroke rendering him incapable of testifying. However, two witnesses did testify, in 1950, as to their recollection of petitioner's demeanor in 1938.

One was the chief deputy sheriff, who, in 1938, as a deputy sheriff, had been in charge of taking petitioner to and from the courtroom and to the lobby when petitioner was leaving for the penitentiary. His testimony included the following:

'Q. What did you notice, if anything, about his appearance     that would have anything to do with the question whether or      not he appeared to be in fear or relaxed or what? A. He was     very relaxed. There was no sign of fear and no showing,     either physically or by speech.

'Q. Anything that would lead you to that conclusion? A. To     not being in fear?

'A. Yes. A. He was nonchalant. * *  * '

The other witness was a Circuit Judge, who, in 1938, had participated, as an assistant prosecutor, in the interrogation of petitioner when the latter confessed his crime. This witness testified:

' * *  * I, of course, felt that his answers were fair-were      honest and candid in his final statement that he made. That     is just my opinion, but he answered the questions that were      put to him. To me he seemed very calm and not excited in the     least. He spoke about it quite in a matter of fact way. His whole     attitude was such that it was hard for me to understand his      lack of emotion in telling the story of just what happened or      what he claimed happened, what he did and what she did.'

As against this, petitioner offered his own statement, quoted by the Court, 355 U.S. 163, 78 S.Ct. 196. Judge Sweet, who presided in 1950, gave little credence to it and said in his opinion:

'While this Court has not disregarded the testimony of the     (petitioner), but on the contrary has carefully considered      it, it is the conclusion of this Court that the      (petitioner's) testimony is not worthy of belief. This     conclusion is arrived at because of the manner of the witness      while testifying, his interest in the outcome of these      proceedings, and the many points of conflict between his      testimony and the testimony of the two witnesses herein      referred to.'

This leaves for consideration the sheriff's statement, quoted by the Court, 355 U.S. 162, 163, 78 S.Ct. 195. His recollection was that he told petitioner that, as sheriff, it was his duty to protect petitioner and that he would use every effort at his command to do so, but that he added "the tension is high out there and I am just telling you what could happen if it was started by someone.' I don't know the language I used.' He did not testify as to petitioner's mental or emotional condition. Furthermore, his recollection as to what he had said about tension must be read in comparison with the abundant testimony of others supporting Judge Sweet's conclusion that, in 1938, there had been little community tension and 'no threat of mob violence * *  * .' That the judge discounted the effect of the sheriff's testimony appears from his denial of petitioner's motion on the express ground that he believed that petitioner's plea of guilty 'was freely and voluntarily made *  *  * .'

The issue is one of fact as to what occurred 19 years ago. Three times the state courts have concluded that petitioner acted freely, intelligently and understandingly. On this record, I would affirm that judgment.