# Milton v. Wainwright/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Stewart
[p378] MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
Under the guise of finding "harmless error," the Court today turns its back on a landmark constitutional precedent established 40 years ago. That precedent, which clearly controls this case, is Powell v. Alabama, 287 U.S. 45. I respectfully dissent.
In 1958 a Florida grand jury indicted the petitioner, George Milton, for first-degree murder. This was an offense punishable by death under Florida law. After he had been indicted, Milton was remanded to the Dade County jail to await trial. He had retained a lawyer, who had advised him not to talk about his case with anyone.
Some two weeks later, the State directed a police officer named Langford to enter Milton's cell, posing as a fellow prisoner also under indictment for murder, in order to "seek information" from Milton. Langford entered the cell on Friday evening. That night he "tried to open him [Milton] up," but Milton refused to talk about his case. The next day Langford devoted his efforts to gaining Milton's confidence. He shared his breakfast with Milton and gave him candy. He talked convincingly about his own purported crime. He tried to steer the conversation to the charge against Milton, but Milton repeatedly said he did not want to talk about it, and had been told not to talk about it by his lawyer. Finally, sometime between midnight and 3 a.m. on Sunday, after almost 36 hours of prodding [p379] by his supposed fellow prisoner, Milton allegedly confessed the murder to Langford.
At Milton's subsequent trial, Langford, over objection, was allowed to testify in detail to this alleged confession. Milton was convicted, and, upon the recommendation of the jury, he was not sentenced to death, but to life imprisonment. His appeals to the state appellate courts were unavailing, and he ultimately filed the present federal habeas corpus proceeding in the United States District Court for the Southern District of Florida, claiming that his conviction was invalid because he had been deprived of his constitutional right to the assistance of counsel after the indictment.
The District Judge denied the writ, apparently believing that the question before him was whether this Court's decision in Massiah v. United States, 377 U.S. 201, was "retroactive":
   "This case was tried six years before the Supreme Court indicated in Massiah v. United States, 377 U.S. 201... (1964), that confessions are involuntary per se if induced by officers or their agents from an accused after his indictment while he is without assistance of counsel. No Court has declared Massiah retroactive, and this Court will not be the first to do so. Counsel for Milton argues that Massiah was not declared retroactive because far from stating new principles of law, it merely restated principles derived from Powell v. Alabama, 287 U.S. 45... (1932). However, the Powell case dealt with the Sixth Amendment right to appointment of counsel in a capital case, a situation far different from this case. Milton knew what he was doing. He wasn't intimidated by the police, because he didn't even know his cellmate was a policeman. He had a lawyer who had told him not to make any statements concerning [p380] his case, but he chose not to follow that advice." 306 F. Supp. 929, 933-934.
The Court of Appeals for the Fifth Circuit affirmed per curiam "on the basis of [the District Court's] opinion," 428 F. 2d 463, and we granted certiorari, 403 U.S. 904.
The District Court and the Court of Appeals were in error. They were mistaken, first, in thinking that the Massiah case had anything to do with the "voluntariness" of a confession. They were mistaken, second, in thinking that any real question of "retroactivity" was presented. They were mistaken, third, in thinking that Powell v. Alabama, supra, dealt only with "appointment of counsel in a capital case." And they were mistaken, fourth, in thinking that Powell v. Alabama was inapplicable to this case.
Powell v. Alabama, decided almost 40 years ago, was one of the truly landmark constitutional decisions of this Court. It held that under the Fourteenth Amendment a man indicted for a capital offense in a state court has an absolute right, not "to appointment of," but to the assistance of counsel. And that constitutional right is not restricted to the trial. The Court reversed the convictions in Powell, because:
   "during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself." 287 U.S., at 57.
In Massiah v. United States, supra, we found that [p381] this constitutional right to counsel was violated when, after indictment, a defendant who had a lawyer was surreptitiously interrogated alone by an agent of the police. "[U]nder our system of justice," we said, "the most elemental concepts of due process of law contemplate that an indictment be followed by a trial, 'in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.'..." "[A] Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding...." "This view," we said, "no more than reflects a constitutional principle established as long ago as Powell v. Alabama, 287 U.S. 45." 377 U.S., at 204-205.
The "retroactivity" of the Massiah decision is a wholly spurious issue. For Massiah marked no new departure in the law. It upset no accepted prosecutorial practice. Its "retroactivity" would affect no wholesale jail deliveries. Cf. Tehan v. Shott, 382 U.S. 406, 418-419. In no case before Massiah had this Court, at least since Powell v. Alabama, ever countenanced the kind of post-indictment police interrogation there involved, let alone ever specifically upheld the constitutionality of any such interrogation.
[p382] For four decades this Court has recognized that when a State indicts a man for a capital offense, the most rudimentary constitutional principles require that he be afforded the full and effective assistance of counsel:
   "Let it be emphasized at the outset that this is not a case where the police were questioning a suspect in the course of investigating an unsolved crime....
   "Under our system of justice an indictment is supposed to be followed by an arraignment and a trial. At every stage in those proceedings the accused has an absolute right to a lawyer's help if the case is one in which a death sentence may be imposed. Powell v. Alabama." Spano v. New York, 360 U.S. 315, 327 (concurring opinion).
So the question in this case is not whether Massiah is "retroactive," for the rule in that case has been settled law ever since Powell v. Alabama.
I can find no basis for the Court's holding today that the admission of Officer Langford's testimony was harmless. In Chapman v. California, 386 U.S. 18, we said that an "error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant [p383] cannot, under Fahy (v. Connecticut, 375 U.S. 85), be conceived of as harmless." 386 U.S., at 23-24. And on the question of whether a jury might possibly have been influenced, the State must "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id., at 24.
Neither the District Court nor the Court of Appeals even suggested the possibility of harmless error in this case, and with very good reasons. The Court today relies on the fact that the challenged "confession" was only one of several introduced at the petitioner's trial. But it fails to mention that each of the previous statements was taken during an 18-day period after arrest but before indictment, when the petitioner was held in jail incommunicado and was questioned almost every day, often for hours at a time. For 10 days the petitioner denied that he had deliberately killed his wife. Finally, during a session in which two detectives working in tandem questioned him continuously for some eight hours, the petitioner allegedly confessed. Other statements followed that one, but all were taken during the period of incommunicado detention.
Under these circumstances, it is hardly surprising that the Miami police chose to plant an officer in the petitioner's jail cell two weeks after indictment, in the hope of obtaining admissions less tainted by the indicia of unreliability that surrounded the previous statements. They succeeded in doing so, and the alleged confession thus obtained was truly devastating to the defense at the trial. Langford's testimony was the first evidence of any incriminating statements introduced by the State at the trial, and it was referred to repeatedly by the prosecutor in his final argument.
The state courts determined that the petitioner's pre-indictment statements were voluntary, and that issue, as the Court notes, is not now before us. But the weight [p384] given by a jury to any alleged confession is affected by the circumstances under which it was obtained, and the ability of the petitioner to discredit in the minds of the jury the evidence of his prior statements was undoubtedly destroyed by the strong corroboration and elaboration supplied by the testimony of Officer Langford, who had been unconstitutionally planted in the petitioner's jail cell. Surely there is at the least a reasonable doubt whether in these circumstances the introduction of Langford's testimony did not contribute to the verdict of first-degree murder returned by the jury, particularly where a conviction for a lesser degree of homicide was a distinct possibility on the evidence.
To hold otherwise, in the absence of any finding of harmless error by any of the four courts that have previously ruled on the admissibility of Langford's testimony, is to violate the very principle that the Court restates today: "The writ of habeas corpus has limited scope; the federal courts do not sit to re-try state cases de novo but rather to review for violation of federal constitutional standards." Ante, at 377.
Despite its admonition, the Court today refuses to rule on the constitutional question squarely presented in this case. That question is whether the great constitutional lesson of Powell v. Alabama is to be ignored. I would not ignore it, but would honor its "fundamental postulate... 'that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.'" Powell v. Alabama, 287 U.S., at 71-72.
For these reasons, I would reverse the judgment before us.

## Notes

* ↑ Massiah involved a federal noncapital felony charge, where the defendant had an absolute Sixth Amendment right to counsel under Johnson v. Zerbst, 304 U.S. 458. The same absolute right was secured by Gideon v. Wainwright, 372 U.S. 335, to defendants in noncapital state criminal cases under the Sixth and Fourteenth Amendments. This constitutional guarantee has now been further extended. See Argersinger v. Hamlin, ante, p. 25.
* ↑ An issue of the "retroactivity" of a decision of this Court is not even presented unless the decision in question marks a sharp break in the web of the law. The issue is presented only when the decision overrules clear past precedent, e.g., Linkletter v. Walker, 381 U.S. 618; Desist v. United States, 394 U.S. 244; Williams v. United States, 401 U.S. 646; or disrupts a practice long accepted and widely relied upon, e. g., Johnson v. New Jersey, 384 U.S. 719; Stovall v. Denno, 388 U.S. 293; Cipriano v. City of Houma, 395 U.S. 701.
* ↑ Even on the erroneous premise that the "retroactivity" of Massiah is here involved, the District Court was quite mistaken in stating that "[n]o Court has declared Massiah retroactive." This Court, in McLeod v. Ohio, 381 U.S. 356, reversed, citing Massiah, an Ohio conviction because a voluntary confession was admitted in evidence that had been obtained when police officers questioned the petitioner in the absence of counsel a week after he had been indicted. The conviction antedated Massiah by almost four years.