# Moore v. Michigan/Dissent Burton

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Burton
United States Supreme Court
355 U.S. 155
Moore v. Michigan
Argued: Oct. 15, 16, 1957. --- Decided: Dec 9, 1957
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.

## Notes

* ↑ The following are examples of the conflicts presented by petitioner's testimony:
He testified that a large number of people hammered at his cell door, whereas the sheriff and deputy sheriffs denied this and said that it was physically impossible for a group of people to reach petitioner's cell and that his cell door was not of a type conducive to hammering.
Petitioner said that the judge, in arraigning him, did not inform him of his right to counsel. Several witnesses testified to the contrary and Judge Sweet, presiding at the hearing on the delayed motion, said:
'It is the further conclusion of this Court that before such plea was accepted by the late Judge Weimer, the (petitioner) was informed of his right to a trial by jury and of his right to be represented by counsel, and that the (petitioner) indicated his desire to proceed without counsel and without a trial, and his desire to have his plea of guilty received by the Court and sentence imposed without further delay.'
Petitioner, in testifying as to what took place at his private interview with Judge Weimer, said repeatedly and unequivocally that the sheriff came with petitioner into the judge's chambers and not only was present, but did much of the talking and leading of petitioner's examination. The sheriff and others, however, testified that it was the sheriff's practice not to attend such private sessions of the judge, and that the sheriff was not present on this occasion which Judge Weimer described as his 'private interview' with petitioner.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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