David Spanbauer — the serial rapist who abducted and murdered two young
girls and then killed a young Appleton woman during a botched burglary —died
in prison Monday at the age of 61.
Spanbauer — called “pure evil” at his sentencing by
Outagamie County Circuit Judge James Bayorgeon —never expressed remorse
for his crimes. He was sentenced eight years ago to three life terms in
prison without parole plus 403 years.
A lifelong burglar and thief from Oshkosh, Spanbauer
spent most of his adult life in prison. However, during his short
periods of freedom, he wreaked havoc and in 1992 and 1994, he terrorized
He murdered 10-year-old Ronelle Eichstedt of Ripon in
1992, and 12-year-old Cora Jones of Waupaca two years later. In each
case, he grabbed the girls while they were riding bikes, molested them
and dumped their bodies in remote areas.
Breaking into an Appleton house he thought was
unoccupied in July 1994, he found Trudi Jeschke, 21, in a bedroom. She
was housesitting. He shot her to death.
Dodge County Coroner John Burgbacher said Spanbauer,
61, was pronounced dead at 4:25 p.m. Monday at the Dodge Correctional
Institution in Waupun apparently from heart disease or liver cancer. An
autopsy will be performed.
Spanbauer had been in failing health for the past two
“At least my tax money is no longer going to keep him
alive,” said Rick Jones, of rural Waupaca, the father of David
Spanbauer’s last victim.
“I always look at my check stub at my taxes and I
always knew that I was paying for health care for the guy who killed my
daughter,” he said Monday. “There will be a party tonight.”
Appleton attorney Thomas Zoesch represented Spanbauer
and remained his unofficial counsel over the years.
Zoesch said his most recent communications with
Spanbauer centered around negotiating an interview with The Post-Crescent.
“I think he wanted to cleanse his soul,” said Zoesch.
“I really think he wanted to bare his soul, but there was a monetary
motivation as well.”
Spanbauer’s conditions for an interview included cash
payment as well as conducting the interview outside the prison.
The Post-Crescent does not pay for interviews.
Spanbauer’s last letter to Zoesch was dated July 19.
“I want to know if they (The Post-Crescent)
are going to do it or not,” wrote Spanbauer.
He said in the letter that “things are getting tight,”
and that he was down to $100 in his canteen fund.
Zoesch also said Spanbauer had left instructions with
the infirmary staff not to resuscitate him in the event of a medical
Apparently, those orders were carried out.
Spanbauer, to the best of Zoesch’s knowledge, did not
leave any letters of confession or contrition and Zoesch maintains
Spanbauer has accounted for all of his crimes.
“There would have been no reason for him to withhold
confessing to another crime.”
Detective Dan Woodkey of the Appleton Police
Department said today Spanbauer was a manipulator, always seeking to get
some benefit from his interrogators.
“He’d request things we’d never give him,” Woodkey
said. “I’d never give him a moment’s satisfaction.”
Once, when Woodkey and investigator Randy Cook were
transporting Spanbauer from a Minnesota prison, there was news on the
radio of a break-in in which a young girl was murdered.
“He was in the back seat talking about how terrible
it was, and the whole time he never expressed any remorse for killing
those three young ladies,” Woodkey said. “We couldn’t believe what we
Outagamie County Dist. Atty. Vince Biskupic
prosecuted Spanbauer in December 1994 for crimes committed in five
counties, including the three murders.
“You would be hard-pressed to find someone in the
state of Wisconsin who would be shedding a tear over his death,”
Jeschke’s murder came just days after an Illinois
woman foiled an attempted abduction by Spanbauer near Hartman Creek
State Park in Waupaca County while she was on a bike.
Spanbauer’s criminal career began when he was a
juvenile, but his serious offenses started shortly after his
dishonorable discharge from the Navy in 1959 and included the rape of a
16-year-old girl and the shooting of her uncle.
It was the abductions and murders of Eichstedt and
Jones, though, that shocked northeastern Wisconsin communities and
launched one of the area’s most intensive police investigations.
The investigation into the Eichstedt abduction and
murder had gone cold at the time 12-year-old Cora Jones’ bike was found
lying in the middle of Sanders Road in the Waupaca County Town of Dayton
on Labor Day 1994.
A massive search began the next day that involved
hundreds of volunteers combing an area within a 10-mile radius of the
missing girl’s bike.
The search for Jones garnered national attention
after the FBI joined in the case, and a rural Waupaca church was quickly
turned into a search center. Jones’ body was found five days later in
The investigation continued while a series of
seemingly unconnected crimes were going on in the Appleton area,
including two home-invasion sexual assaults in Appleton in which a 15-year-old
girl and a 31-year-old woman were victimized.
On Nov. 14, 1994, a Combined Locks man saw a man
trying to break into his house. He chased the man down and tackled him.
The suspect, Spanbauer, was booked into jail on burglary charges and
quickly became a suspect in the murders.
Four days later, Spanbauer confessed to the murders
of Jones, Eichstedt and Jeschke, as well as to the sexual assaults and
assorted burglaries. He also confessed to the attempted abduction of the
woman near Hartman Creek State Park.
Spanbauer ultimately entered guilty pleas to 18
felonies from five counties Dec. 8. Bayorgeon sentenced Spanbauer Dec.
Vicki Jones, Cora’s mother, said his death brings her
“It is kind of a relief. It is a weight off of our
shoulders,” she said. “We have been waiting eight years, and we know how
bad death is. But after what he did to Cora he didn’t deserve to live.”
Woodkey called Linda Jeschke, the mother of Trudi,
within minute of learning of Spanbauer’s death. “She said, ‘The case is
Larry Shadick, chief deputy for the Langlade County
Sheriff’s Department, remembered the fear that ran through the area
after Jones’ body was found Sept. 10 in the ditch alongside a rural town
road. Ultimately, it was an officer with his department who heard
“In our little department and in our community,
nobody could sleep until he was found,” said Shadick. “Our citizens were
so frightened. In a small community they expect a lot out of law
enforcement and they expect every crime to be solved.”
The murder investigation was conducted by a task
force made up of investigators from the Waupaca County Sheriff’s
Department, the Langlade County Sheriff’s Department, the FBI and the
Wisconsin Department of Justice Division of Criminal Investigation.
A reward fund approached $150,000.
A REIGN OF TERROR
SEX: M RACE: W TYPE: T MOTIVE:
MO: Rape-slayer of females age
DISPOSITION: 403 years on three
374 F.2d 67
John C. Burke, Warden, Wisconsin State Prison, Respondent-appellee
United States Court of Appeals Seventh Circuit.
Dec. 28, 1966
Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.
HASTINGS, Chief Judge.
Spanbauer has appealed from an order of the
district court, entered after a full evidentiary hearing, denying his
petition for a writ of habeas corpus.
On February 29, 1960, Spanbauer,
who waived counsel at his arraignment and later at time of trial, was
convicted in a Wisconsin state court following his pleas of guilty to
ten separate counts of an information charging him with armed robbery (two
counts), rape, conduct regardless of human life, burglary, theft,
attempted rape and armed burglary (three counts), all committed within a
period of three to five weeks.
While Spanbauer pleaded
guilty, a hearing was held, witnesses appeared, testimony was taken and
copies of statements and confessions by Spanbauer
to the police were admitted into evidence. At the end of the hearing,
Spanbauer indicated that the testimony taken
was a true and correct account of the various crimes contained in the
Spanbauer was sentenced to
an aggregate of 70 years imprisonment for all but the sex crimes.
Sentencing on the sex crimes was postponed until the Wisconsin State
Department of Public Welfare, in whose custody
Spanbauer was placed for examination, reported whether he was a
fit subject for commitment for treatment at the Wisconsin sex deviate
facility pursuant to sec. 959.15, Wis. Stats. On May 3, 1960, following
that report, Spanbauer was committed to the sex
deviate facility for treatment.
On appeal, it is argued that
Spanbauer's waiver of counsel was ineffectual because the trial
court failed to advise him of the possibility of appointed counsel, of
the range of allowable punishments and of possible defenses and
mitigating circumstances. It is also urged that
Spanbauer was deprived of his right to counsel at the time of
sentencing, when Spanbauer gave some indication
to a prosecuting attorney that he desired counsel.
On February 15, 1960, Spanbauer
was taken into police custody in Sheboygan, Wisconsin on charges of
carrying a concealed weapon and petty larceny.
Spanbauer admitted committing a burglary in Wauwatosa, Wisconsin,
and two police officers from that city took custody of
Spanbauer on February 18 and returned him to Wauwatosa.
These detectives testified that they advised
Spanbauer of his right not to talk and of his
right to an attorney, either retained or appointed.
On February 19, Spanbauer
was questioned by police officers. He was questioned again the following
day after bond had been set. In the afternoon of February 20, after
having been moved to the Milwaukee County Jail, he gave a voluntary
statement confessing crimes of which he had not been suspected. On
February 21, he was questioned again by other officers, and gave two
Brown County district attorney Grant, the prosecuting
attorney, testified he had a conversation with
Spanbauer in his cell on February 24, 1960, that he explained to
him procedures relating to arraignment and preliminary hearing; the
right of counsel, including appointment of counsel; the plea of not
guilty; and at least some of the charges. Grant further indicated to
Spanbauer that he was likely to get a 'good
joit' or sentence, although he apparently did not indicate the penalties
for specific offenses.
On February 24, Spanbauer
waived preliminary examination and appointment of counsel before the
municipal judge as magistrate at Green Bay, and pleaded guilty to three
counts of the information. The colloquy relating to appointment of
counsel is set out in the margin.1
Thereafter, the various charges against
Spanbauer were consolidated for trial in one
place, the crimes having occurred in different counties. On February 29,
in the Municipal Court for Brown County, Spanbauer
waived preliminary examination on seven additional counts of the
information, pleaded guilty to each of the ten counts and waived counsel
on the seven additional counts. After a hearing,
Spanbauer was convicted and sentenced on eight counts.
On May 3, when Spanbauer was
returned to court for sentencing following the evaluation under the sex
deviate law, Spanbauer informed Grant that he
desired counsel to represent him. Although there is conflict in the
evidence in the record, it appears that this request was not transmitted
to the judge, but that Spanbauer was told to
make the request to the judge himself, which he did not do.
Spanbauer's petition for a
writ of habeas corpus to the Wisconsin Supreme Court was denied without
opinion on September 11, 1964.
Following a habeas corpus hearing, the federal
district court found that there had been explained to
Spanbauer the detailed procedures relating to appointment of
counsel and the fact that counsel would be appointed for him if he were
The record discloses that as a young adolescent,
Spanbauer was arrested four times for purse
snatching, burglary, disorderly conduct and window peeping. Entering the
Navy at age 17, he was given a bad conduct discharge for repeated AWOL.
Psychiatric treatment was recommended. Shortly after his discharge from
the Navy, he committed the criminal acts for which he was convicted.
examination reports disclosed that he was socially deviant in a fashion
for which mental treatment was deemed appropriate. He was described as 'sociopathic',
'very disturbed', 'extremely dangerous' and characterized as being
impulsive, having poor judgment, being severely withdrawn and having a
great potential for 'an acute psychotic reaction.' By and large, his
thinking and intelligence were not found to be impaired. Without further
detailing the impressions and findings in the reports, it is sufficient
to state that they are of such a nature as to raise the question of
Spanbauer's general competency.
Although the federal district court did not discuss
in detail the question of Spanbauer's
competency with respect to his waiver of counsel, it found his mental
capacity and emotional state were not so impaired as to render his
waiver of counsel invalid.
Although the record is not completely clear as to
exactly what Spanbauer was told prior to his
trial, for purposes of appeal, we shall assume that he was not informed
of the range of allowable punishments and of possible defenses or
There is no question that under the Sixth Amendment,
Spanbauer was entitled to counsel in the state
courts. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963). Furthermore, state defendants are guaranteed assistance of
counsel under the Fourteenth Amendment, unless it is intelligently and
understandingly waived. Carnley v. Cochran, 369 U.S. 506, 512-513, 82
S.Ct. 884, 8 L.Ed.2d 70 (1962). Waiver of counsel standards as
articulated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.
1461 (1938), have been said to be applicable to asserted waivers of the
right to counsel in state criminal procedings. Carnley v. Cochran, supra,
at 515, 82 S.Ct. 884.
In Zerbst, the Supreme Court stated:
'The determination of whether there has been an
intelligent waiver of right to counsel must depend, in each case, upon
the particular facts and circumstances, surrounding that case, including
the background, experience, and conduct of the accused.' Zerbst, supra,
304 U.S. at 464, 58 S.Ct. at 1023.
In Carnley the Court clarified what must be shown of
record on the question of waiver under a petition for a writ of habeas
'The record must show, or there must be an allegation
and evidence which show, that an accused was offered counsel but
intelligently and understandingly rejected the offer. Anything less is
not waiver.' Carnley, supra, 369 U.S. at 516, 82 S.Ct. at 890.
Thus, a federal court in coming to a decision after a
hearing on a writ of habeas corpus alleging invalid waiver of counsel is,
at the very least, to make a determination whether the accused
intelligently and understandingly rejected counsel by applying the ad
hoc test of Zerbst.
But we are faced with the further question whether
the failure of the district court to enforce federal waiver standards as
found in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309
(1948), may lead to an undermining of the rights of indigent defendants
to appointment of counsel as expressed in Gideon, supra.
In Von Moltke, the Supreme Court set out federal
standards for the duty of a trial judge in determining whether a waiver
of counsel has been intelligent and competent.
'To discharge this duty properly in light of the
strong presumption against waiver of the constitutional right to counsel,
a judge must investigate as long and as thoroughly as the circumstances
of the case before him demand. The fact that an accused may tell him
that he is informed of his right to counsel and desires to waive this
right does not automatically end the judge's responsibility. To be valid
such waiver must be made with an apprehension of the nature of the
charges, the statutory offenses included within them, the range of
allowable punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a
broad understanding of the whole matter. A judge can make certain that
an accused's professed waiver of counsel is understandingly and wisely
made only from a penetrating and comprehensive examination of all the
circumstances under which such a plea is tendered.' Von Moltke, supra,
at 723-724, 68 S.Ct. at 323.
It is urged upon us that these standards fully apply
in the determination of a state prisoner's intelligent and understanding
waiver of counsel.
We may sharpen the issue even more by noting that in
Von Moltke, as in the instant case, the defendant received information,
advice and counsel about the indictment, about the legal questions
involved in a trial and other matters from government agents. With
respect to that fact, the Court said:
'The Constitution does not contemplate that prisoners
shall be dependent upon government agents for legal counsel and aid,
however conscientious and able those agents may be.' Von Moltke, supra,
at 725, 68 S.Ct. at 324.
The Wisconsin Supreme Court has recognized the trial
judge's responsibility and has established standards somewhat similar to
those found in Von Moltke.2
But, however close those standards may seem to those in Von Moltke, we
must assume that since the Wisconsin Supreme Court refused to have a
hearing on Spanbauer's petition for habeas
corpus, it was satisfied that its own standards had been followed. Thus,
on our assumptions from an unclear record that
Spanbauer was not informed of specific sentences, possible
defenses or mitigating circumstances, it is clear that the Wisconsin
standards are not as comprehensive or strict as the federal standards,
at least as expressed in Von Moltke.
It is also clear that the federal district judge in
coming to a decision on Spanbauer's habeas
corpus petition, assumed that the Von Moltke standards did not fully
In order to resolve the question raised, we have
undertaken a brief review of federal decisions in this area.
It appears that federal courts have looked to the
substance of the Von Moltke formulations, and not to its formulas. See,
e.g., Johnson v. United States, 5 Cir., 344 F.2d 401, 404 (1965); United
States v. Washington, 3 Cir., 341 F.2d 277, 284-285 (1965), cert. den.
sub nom. DeGregory v. United States, 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d
89 (1965); Verdon v. United States, 8 Cir., 296 F.2d 549, 553 (1961),
cert. den., 370 U.S. 945, 82 S.Ct. 1590, 8 L.Ed.2d 811 (1962); Hinton v.
United States, 5 Cir., 232 F.2d 485, 487 (1956). Von Moltke has been
taken to require a hearing or a searching inquiry by the trial judge,
Coates v. United States, 106 U.S.App.D.C. 389, 273 F.2d 514, 516 (1959);
Arnold v. United States, 4 Cir., 271 F.2d 440, 442 (1959); or that the
trial judge be convinced the defendant had 'a broad understanding of the
whole matter', United States v. Kniess, 7 Cir., 264 F.2d 353, 356
(1959); or that 'the accused fully understands the charges against him
and the possible adverse consequences of not having counsel to represent
him', Smith v. United States, 5 Cir., 216 F.2d 724, 726 (1954). Even
when noting or expressing some of the Von Moltke standards, federal
courts have failed to recite the remainder of them which would have been
inconsistent with the result obtained in the case, a result reached by
the application of the Zerbst standard, a knowing and understanding
waiver. See United States v. Washington, supra; Hinton v. United States,
Federal courts, noting, expressly or indirectly, that
Von Moltke established guidelines for federal district courts respecting
waiver of counsel, have nonetheless viewed the question of waiver of
counsel as ultimately an issue, irrespective of the trial court's
fulfillment of its Von Moltke duties, of whether the accused knowingly
and intelligently chose to waive counsel. See United States v. Smith, 4
Cir., 337 F.2d 49, 55 (1964), cert. den., 381 U.S. 916, 85 S.Ct. 1542,
14 L.Ed.2d 436 (1965); Post v. Boles, 4 Cir., 332 F.2d 738, 742 (1964),
cert. den., 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274 (1965); Twining
v. United States, 5 Cir., 321 F.2d 432, 434-435 (1963);3
Aiken v. United States, 4 Cir., 296 F.2d 604, 607 (1961); Starks v.
United States, 4 Cir., 264 F.2d 797, 799 (1959).
Such applications as there have been of Von Moltke to
state proceedings have not relied on the literal language or application
of the Von Moltke standards, but upon the proposition that the trial
judge has some duty to make an investigation into the circumstances to
determine whether the petitioner had intelligently and competently
waived his right to counsel. See McBee v. Bomar, 6 Cir., 296 F.2d 235,
Even where it appears that a federal court may have
applied both Zerbst and Von Moltke standards to proceedings in a federal
court, the result has not been to vitiate the waiver, but to require a
hearing in which the burden of proof to establish an invalid waiver is
upon the defendant or petitioner. See Vellkey v. United States, 6 Cir.,
279 F.2d 697 (1960); United States v. Wantland, 7 Cir., 199 F.2d 237
(1952); Taylor v. United States, 10 Cir., 193 F.2d 411 (1952); Cherrie
v. United States, 10 Cir., 179 F.2d 94 (1949). Cf. United States v.
Lester, 2 Cir., 247 F.2d 496 (1957); Sanders v. United States, 5 Cir.,
205 F.2d 399 (1953). See also Davis v. United States, 8 Cir., 226 F.2d
834 (1955). Contra, Shelton v. United States, 5 Cir., 242 F.2d 101
(1958), set aside on rehearing, 246 F.2d 571 (1957), revd., 356 U.S. 26,
78 S.Ct. 563, 2 L.Ed.2d 579 (1958).4
The only federal cases apparently using some part of
the Von Moltke standard as controlling are those which also indicate an
actual and gross unfairness in the failure to apply the standard. See
Gannon v. United States, 6 Cir., 208 F.2d 772 (1953); Sanders v. United
States, supra; Snell v. United States, 10 Cir.,
174 F.2d 580 (1949).
Only a few federal courts have expressly considered
the question whether Von Moltke or Zerbst standards are to be applied to
the determination of waiver of counsel. In Collins v. United States, 8
Cir., 206 F.2d 918, 922 (1953), the court said:
'In its ultimate analysis, it seems to us that the
question here thus gets down to whether such a declaration as has been
made by the Supreme Court in the case of Von Moltke v. Gillies * * * is
required to be read as intended to lay down as an absolute rule of law
that no waiver of counsel can or will be permitted to exist unless the
trial court has expressly made statement in the courtroom to a prisoner
of his right to such assistance, or whether it is entitled to be read as
rather being emphasizive of a precautionary and responsible rule of
practice on the part of the trial judge, which ought as a protection to
the prisoner to be scrupulously observed.
'We do not believe that the Supreme Court meant to
hold that jurisdiction cannot at all exist in a trial court to accept a
plea of guilty or to impose sentence upon such a plea, unless the court
has first made formal declaration from the bench of the prisoner's right
to the appointment and assistance of counsel and has engaged in
supplementary inquiry, and that all sentences which have in the judicial
informalities of the past half century or more been so pronounced must
consequently be branded as legal nullities and void incarcerations,
regardless of whether the prisoner in fact knew of his right to such
appointment and whether he understandingly intended at the time to
forego such assistance. At least, we do not think that any such legal
concept has heretofore obtained in the federal system. Always the
question seems to have been regarded as being one of appraising, on all
the probative elements and circumstances of each particular situation,
whether as a matter of knowledge and intent on the part of the prisoner,
there existed in fact a competent and intelligent waiver by him of the
assistance of counsel in what he did-- and the prisoner has been
required to assume the unsuperficial burden of establishing and
satisfying that no such waiver by him did in fact exist. Cf. Johnson v.
Zerbst * * *.'
In Aiken v. United States, supra, 296 F.2d at 607,
the court expressly repeated and adopted the standards of Von Moltke for
federal courts, but went on to state that the failure of a federal
district court to perform its duties with respect to waiver of counsel
does not of itself render the proceedings unconstitutional or invalidate
them, for there was yet required a showing that the defendant did not
understandingly waive his rights. Accord, Post v. Boles, supra; Starks
v. United States, supra.
The fundamental right to counsel is not deprived an
accused in a state court criminal proceeding if that court had accepted
a waiver of counsel after a determination reflecting that under the
particular facts and circumstances surrounding the case, including the
background, experience and conduct of the accused, the waiver was made
by the accused intelligently and understandingly, with knowledge of his
right to counsel, even if indigent. Zerbst, supra; Carnley, supra;
While allegations or a showing that the trial court
did not make such a determination would prima facie establish a ground
for a habeas corpus hearing, the burden on a petitioner who has
affirmatively waived counsel is to show by a preponderance of the
evidence that the waiver was not made intelligently or understandingly.
Zerbst, supra; United States v. Morgan,346 U.S. 502, 512, 74 S.Ct. 247,
98 L.Ed. 248 (1954); Moore v. State of Michigan, 355 U.S. 155, 161-162,
78 S.Ct. 191, 2 L.Ed.2d 167 (1957). A preponderance of the evidence is
not created by allegations and a showing that the state court trial
judge did not literally fulfill all elements of a formula describing his
responsibilities for acceptance of waiver of counsel. Substance rather
than form is the guiding criterion for reviewing courts.
We recognize that Spanbauer's
commission, within a short time, of a series of related crimes, together
with his background, general behavior and the reports of the
psychiatrists and psychologists from the Wisconsin sexual deviate
facility indicate thay Spanbauer was mentally
and emotionally disturbed. But the fact of such disturbance does not
itself require the conclusion of incompetency to waive counsel. It is
not necessary to review the general question whether
Spanbauer was or was not mentally disturbed. The only question
for the federal district court was Spanbauer's
competence to waive counsel intelligently and understandingly. That
question was one of the central issues in the full evidentiary hearing
conducted by the federal district court in this case.
Following a thorough review of the record, and under
the standard applicable in the assessment of the validity of a waiver of
counsel in a state court proceeding, we conclude that the district court
did not err in its findings that Spanbauer was
advised of his right to counsel, even if indigent, and that he was
competent to waive counsel. Spanbauer has not
shown by a preponderance of the evidence that he did not waive counsel
intelligently and understandingly.
Assuming that Spanbauer did
desire counsel at his sentencing on May 3, 1960, he did not communicate
this to the court. Furthermore, the fact that no further sentence was
added on May 3, but rather commitment to the sex deviate facility for
treatment, leads us to conclude that the district court did not err in
finding no prejudice to Spanbauer in this
In conclusion, we find the record clearly shows that
the federal district court granted and fairly conducted a full
evidentiary hearing on Spanbauer's habeas
corpus petition. Spanbauer was ably represented
by counsel at this hearing. We hold that, on the record before us,
Spanbauer has not sustained his burden of proof.
Spanbauer was represented on
this appeal by Mr. L. C. Hammond, Jr., a reputable member of the
Milwaukee, Wisconsin bar pursuant to appointment by this court. We
commend Mr. Hammond for his unusually excellent service rendered in this
The judgment of the district court is affirmed.
KILEY, Circuit Judge (dissenting).
I respectfully dissent because I think petitioner's
waiver of counsel was made under circumstances which denied him due
process under the Fourteenth Amendment.
Spanbauer was born in
January, 1941. According to his testimony, when he was eleven or twelve
years old he was arrested for stealing. His next brush with the law was
for purse snatching. After each of these offenses he was merely given a
warning. When Spanbauer was about fourteen, he
was convicted of breaking and entering and was placed on a year's
probation. Shortly after his burglary conviction, his father died. Just
after his seventeenth birthday, in January, 1958,
Spanbauer, then a junior in high school, quit school and joined
Spanbauer served in the Navy
for two years, during which he was arrested for carrying concealed
weapons and for robbery. The charges were dismissed. He was given a 'bad-conduct'
discharge from the Navy in November, 1959. After each pre-Navy arrest
and in the Navy, psychiatric treatments were recommended for him, but he
received no treatment. He worked for about a month after his discharge,
and in January, 1960, returned to high school as a junior.
On February 15, 1960, Spanbauer,
then barely nineteen, was arrested in Sheboygan on charges of carrying a
concealed weapon and petty larceny. He was given probation but detained
because he admitted he had stolen the weapon in a burglary in Wauwatosa,
a suburb of Milwaukee. On the afternoon of Thursday, February 18,
Spanbauer was driven to the Wauwatosa Police
Station from Sheboygan. In the squad car, he admitted the Wauwatosa
burglary 'to get everything off (his) chest.' On Friday,
Spanbauer was questioned for about two and one-half
hours at the Wauwatosa Police Station and then taken to Waukesha during
the afternoon for a lie detector test. He made no admissions on Friday.
Spanbauer was brought before a magistrate on
Saturday morning and then taken to the Milwaukee County Jail. That
afternoon, when confronted with evidence linking him with another
burglary in the Milwaukee area, he said that he had something to get off
his chest, but that he would not talk to anyone but the district
A member of the Milwaukee County District Attorney's
Office was summoned, and Spanbauer confessed to
nine of the crimes of which he was later convicted in Brown County.
Authorities from the counties where these crimes had been committed were
called in, and on Sunday, two further statements were taken, one by the
Appleton and Neenah police and one by the Green Bay authorities.
On Tuesday, February 23, Spanbauer
was taken to Green Bay, in Brown County, for trial on the offenses
Spanbauer was examined by a
magistrate on February 24 for armed robbery, rape and conduct regardless
of human life, all alleged to have been committed January 12. The
charges were read to him. Asked if he understood the charges and
understood that they were felonies for which he could be subject to
imprisonment, Spanbauer answered 'Yes, sir.'
The court informed him of his 'right' and 'privilege' to have an
attorney and that if he 'would like to have a lawyer, a reasonable
period of time (would) be allowed by the Court to make the necessary
arrangements.' The court asked Spanbauer if he
preferred to 'go through the entire proceedings without a lawyer.' He
said 'Without a lawyer.' The court then inquired into the intelligence
of his choice by inquiring about his education and work record. The
court asked him if he had 'been told by probably the District Attorney'
of the 'privilege' of an attorney. Spanbauer
said he had. The prosecutor then stated he had told
Spanbauer of his constitutional right to a lawyer. The judge said,
'All right. And do you feel * * * that you understand that choice of an
attorney?' Petitioner said he did. The court then accepted the waiver as
The magistrate explained to
Spanbauer that he was entitled to a preliminary hearing before
proceeding further and said it was a 'privilege' he could give up just
as he had given up his right to an attorney. Spanbauer
said he would like a hearing on the third count: 'I didn't mean to shoot.'
The court said, 'then do I understand you'd like to have a preliminary
hearing on the third count?' Spanbauer answered,
'I don't know for sure.' Asked again as to the third count petitioner
said, 'Well, I don't know, Your Honor. I didn't mean to shoot him that's
At this point the prosecutor requested leave to
explain it to Spanbauer. He did so out of the
magistrate's presence. Spanbauer then waived
preliminary hearing on the third count. He was bound over for
arraignment and trail.
The magistrate, assuming his duties as trial judge,
asked the prosecutor if he was ready to proceed. The prosecutor read the
information. The judge again asked Spanbauer,
'Do you wish to have a lawyer represent you in this case?'
Spanbauer said 'No.' The 'waiver' was accepted
and Spanbauer pleaded guilty to each of the
three counts. The case was placed on the calendar for Monday, February
29, for the purpose of taking testimony on the three counts and to
permit the defendant to consolidate counts from other counties.
At the February 29 hearing the same judge told
Spanbauer that the three counts he had pleaded
guilty to were 'transferred to the Amended Information,' and asked him
if he understood. Spanbauer answered 'Yes,
sir.' The court noted Spanbauer had signed a
written application to have seven additional counts transferred to the
Brown County Municipal Court from three other counties where the
offenses were alleged to have been committed, because of his decision to
plead guilty to all charges. Spanbauer admitted
signing the application. He was then asked whether he waived preliminary
hearing as to the seven additional counts. He said 'Yes, sir.' He was
bound over for trial.
The arraignment followed immediately. The court asked
'And do you also waive your privilege of having an attorney on the seven
additional counts?' Spanbauer answered 'Yes,
sir.' He then pleaded guilty to the ten charges of armed robbery, rape,
conduct regardless of human life, attempted rape, theft and burglary
The trial judge heard the testimony of nine witnesses
for the prosecution, including the victims of the rape, shooting (conduct
regardless of life) and burglary while armed. Three of the five law
enforcement officers who testified read confessions they had obtained
from Spanbauer into the record. Two of the
confessions related the same lurid and detailed story told by the first
witness, the rape victim. One of the police officers read the Police
Complaint Record of one of the burglary counts into the record. Nineteen
exhibits for the prosecution were received into evidence. At the
conclusion of the case for the prosecution, the trial judge found
Spanbauer guilty on each of the ten counts, and
asked him if he wished to make any comment relative to any of the counts.
He said he did not. The judge asked him if the testimony was a true
account of the crimes charged and if he thought he had been given a fair
hearing. Spanbauer answered 'Yes, sir' to each
question. The court received statements from the district attorneys from
each of the counties involved and then asked for any comment the
prosecutor might have.
The prosecutor said, among other things, 'I think the
Court must realize that the defendant to be engaged in crimes such as
these, that he must be somewhat ill,' but he said the court should
consider a 'severe sentence' in view of the impact of the case on the
Green Bay area. After a one-hour recess, the court imposed the maximum
sentence on each of the eight counts other than the sex offenses,
arranging them to run for a total of seventy or eighty years, depending
on construction of the order. The court added that any future parole
would be attended with great danger.
Pursuant to the Wisconsin 'Sex Deviate Law,'
Wis.Stats.Ann. 959.15 (1958 & Supp.1966), the court committed
Spanbauer to the Department of Public Welfare
for a pre-sentence social, physical and mental examination with respect
to the sex crimes. Two months later, the Department of Welfare reported
that Spanbauer was 'very disturbed,' 'extremely
dangerous' and a 'fit subject for commitment under the Sex Deviate Law.'
Just before the commitment hearing Spanbauer
had told the prosecutor he wanted a lawyer. The prosecutor told him to
tell the judge. Spanbauer did not, and the
prosecutor, feeling no duty to tell the judge of petitioner's desire,
did not. Spanbauer was committed to an
indeterminate term under the Sex Deviate Law, to run concurrently with
the sentence on the other counts.
For purposes of this dissent, I will agree with the
majority that the courts have not strictly applied the standards in Von
Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316 (1948), but rather
have focused upon the particular facts concerning the defendant in each
case to determine whether a waiver of counsel was voluntary and
intelligent. There is still, nevertheless, a 'serious and weighty
responsibility upon the trial judge of determining whether there is an
intelligent and competent waiver by the accused.' Johnson v. Zerbst, 304
U.S. 458, 465, 58 S.Ct. 1019, 1023 (1938). Even if the focus is to be
upon what the defendant knew or should have known, apart from what he
was told by the court, in my opinion the inquiry of the Wisconsin court,
while acting both as magistrate and trial judge, was inadequate, either
to insure an intelligent and voluntary waiver or to inform
Spanbauer of what he did not know and could not
No claim is made here by Spanbauer
that his mental state vitiated his capacity to make a valid waiver. But
it is a fair assumption that he was no healthier mentally two months
before the psychiatric report, when the prosecutor told the judge before
sentence that he 'must be somewhat ill.' And that fact bears on the
question of the 'fundamental fairness,' Cox v. Burke, 361 F.2d 183, 186
(7th Cir. 1966) of the proceedings. Spanbauer's
mental condition was an essential 'background' fact, Johnson v. Zerbst,
304 U.S. at 464, 58 S.Ct. 1091, to be considered in the court's
determination of whether he had a 'broad understanding of the whole
matter.' Von Moltke v. Gillies, 332 U.S. at 724, 68 S.Ct. at 323. Within
several minutes, nineteen-year-old 'disturbed'
Spanbauer was required to decide whether to have a preliminary
hearing on the original three counts, whether to plead guilty to them
and whether to waive representation by an attorney. Five days later he
had to decide whether to have the original three counts included in the
amended information, whether to plead guilty again and whether again to
waive counsel. The majority opinion recognizes that the psychiatric
reports of the Wisconsin Department of Public Welfare were of 'such a
nature as to raise the question of Spanbauer's
In my view the confessions of February 20 and 21
should have raised serious doubts as to Spanbauer's
general competency in the minds of the police officers, prosecutor and
trial judge. Six of the crimes of which Spanbauer
was convicted were committed during a onenight crime spree, and the
details of each would indicate even to a layman that
Spanbauer was seriously disturbed. In his confession of February
20 he volunteered the reason for the spree: 'All this started out
because I owed two hundred dollars in bills out in California, and I had
received the bills presently, the day before.' Since the judge was well
aware of the details of the crimes after the testimony of the victims
and the admission of the confessions, he had a good opportunity to
determine Spanbauer's mental competency to have
made a waiver.
I believe my view is confirmed by the psychiatric
reports of the Wisconsin Department of Public Welfare, submitted to the
state court before sentencing pursuant to the Sex Deviate Law and
received in evidence by the district court in the habeas corpus hearing.
The final recommendations of two psychiatrists indicate not only that
Spanbauer was 'extremely disturbed' and a 'boy'
with 'severely distorted' judgment but also that he could not and had
not ever received help from anyone.
Spanbauer's mental condition
at the time of his waiver of counsel, the totality of circumstances
while he was in custody and throughout the hearings, the inadequate
inquiry at the preliminary hearing and the informal carryover of the
waiver to the trial are the considerations justifying my conclusion that
the waiver was invalid. In Johnson v. United States, 344 F.2d 401 (5th
Cir. 1965), the court reversed a finding that a waiver of counsel was
valid and remanded for a hearing to determine Johnson's mental
competency, even though the evidence there was much less persuasive than
in Spanbauer's case.
'There are many shades and phases of mental disorders as well as degrees
of severity, and * * * the law * * * attaches different consequences to
the presence of a particular mental disorder in a defendant at different
stages of the trial process,' id. at 406,-- especially where the waiver
of 'by far the most pervasive'
constitutional right is concerned.
Spanbauer had no experience
in court, as did the defendant in Cox v. Burke, 361 F.2d 183 (7th Cir.
or even in business as in Butler v. Burke, 360 F.2d 118 (7th Cir. 1966),
cert. denied, 87 S.Ct. 79 (U.S. Oct. 10, 1966) (No. 325).5
His only previous experiences with the law resulted in leniency. Neither
these nor his other background and experience gave him any reason to
expect a seventy-year sentence, or gave him any help in conducting his
defense or understanding the procedure of the Sex Deviate Law.6
In contrast to this, the Supreme Court's Von Moltke decision rested in
part upon the possibility of capital punishment or a thirty-year
sentence even though the defendant was the well-educated and intelligent
wife of a university professor and in fact received a sentence of only
four years. 332 U.S. at 709, 68 S.Ct. 316. Spanbauer
had no way of comparing the benefits of having counsel with the
difficulties of conducting one's own defense as did the defendant in Cox
v. Burke, 361 F.2d at 185. Just as the defendants in Johnson v. Zerbst,
Spanbauer was faced with rapid-fire legal
proceedings, totaling ten days from arrest to sentencing.7
His passive participation in his 'defense' stands in contrast even to
the amateurish and brief efforts of the defendants in Johnson v. Zerbst.
Some-what as in Von Moltke, the Spanbauer
proceedings were conducted in an atmosphere suggestive of hostility in a
community where, as the prosecutor told the trial judge, people were not
used to locking their doors.
Turning now to the courtroom proceedings, I think it
is clear that the waiver of counsel was invalid. The Wisconsin trial
judge did not advise Spanbauer that if he was
indigent the court would appoint counsel for him. The judge relied upon
the prosecutor's statement that he had advised
Spanbauer of his constitutional right to an attorney, and the
judge did not ask what the advice was.8
There was no advice by the prosecutor in the judge's presence as in
Johnson v. United States, 344 F.2d at 404 (dicta). See Arnold v. United
States, 271 F.2d 440, 441 (4th Cir. 1959).9
The 'waiver' accepted at the hearing of February 24 was extended at the
subsequent trial without formality, Spanbauer
saying he understood the right waived with his recurring 'Yes, sir.' But
saying so does not make it so. See United States v. Washington, 341 F.2d
277, 284 (3rd Cir.), cert. denied, DeGregory v. United States, 382 U.S.
850, 86 S.Ct. 96 (1965). Spanbauer's request to
the prosecutor for an attorney at the commitment hearing was treated
with indifference. The only references to possible penalties were the
court's statement that the charges were felonies calling for
imprisonment, and the prosecutor's out-of-court statement that he could
get quite a 'good jolt.' He was not told of any possible defenses or
mitigating circumstances, even, so far as the record shows, when he
expressed doubt about waiving preliminary hearing on the conduct
regardless of life charge with the unsophisticated 'I didn't mean to
This record is not like the one in this court's
decision in United States v. Kniess, 264 F.2d 353, 356 (7th Cir. 1959),
where the court thought by experience and knowledge Kniess, under the
Von Moltke decision, had a 'broad understanding of the whole matter.'10
Nor is this record like that in Verdon v. United States, 296 F.2d 549
(8th Cir. 1961), cert. denied, 370 U.S. 945, 82 S.Ct. 1590 (1962), where
Verdon, who had 'quite a list' of previous convictions, claimed a Sixth
Amendment violation because of a failure to inform him of the maximum
punishment for escaping from federal prison. The court there thought
that this factor was but one of several stated in Von Moltke and not
enough to require vacation of sentence.
I think the uncontradicted record proves an invalid
waiver, so that I see no question of a preponderant showing by
Spanbauer. I would reverse and remand for the
district court to vacate the judgment of conviction on the ten charges,
unless Wisconsin grants him a new trial within a reasonable time.
'Now, Mr. Spanbauer, the
Court has certain duties imposed upon it by law, and at this time the
Court would like to discharge those duties. First of all, it is the duty
of the Court to advise you that in each of the three counts contained in
the complaint you are accused of committing the crime known as a felony.
A felony is a crime which is punishable by imprisonment in the State
Prison. Therefore, in each of the three counts, if you are convicted,
you will be convicted of a felony and each of the three counts is
subject to a term of imprisonment. Do you understand, Mr.
'A. Yes, I do.
-- that all of these counts are felonies? And do you
understand that on each count you would be subject, if convicted, to a
term of imprisonment?
'A. Yes, sir.
'Now, the second duty imposed by law upon the Court
is that you must be advised at this point that you are entitled to be
represented by an attorney if you wish. That is because you are accused
of committing a felony. You have the privilege of being represented by a
lawyer. If you would like to have a lawyer, a reasonable period of time
will be allowed by the Court to make the necessary arrangements. On the
other hand, if you feel that you do not want a lawyer in this case you
can forego your privilege and give up your right to have an attorney. Is
that clear to you, Mr. Spanbauer?
'A. Yes, sir.
'Q. And what would you decide in this case? Do you
want a lawyer, or do you prefer to go through the entire proceedings
without a lawyer?
'A. Without a lawyer.
'Q. You said without a lawyer? In other words, you do
not want a lawyer in this case?
'A. (The defendant responds by nodding his head in
'Now, Mr. Spanbauer, in view
of the fact that you have said that you do not want a lawyer it is
necessary that the Court ask you a few additional questions in order to
determine that that is an intelligent decision on your part. Therefore,
you are now asked by the Court first of all: What is the extent of your
education? How far did you go in school?
'A. Junior grade in high school.
'Q. In other words, you were in the third year of
'A. That's right.
'Q. Did you complete the third year?
'A. No, I didn't.
'Q. Did you complete the sophomore year of high
'A. Yes, I did.
'Q. And part of the junior year?
'A. Yes, sir.
'Q. And was that at the Oshkosh public high school?
'A. Yes, Your Honor.
'Q. Have you had any experience in working? Have you
held any type of job?
'A. Yes, I have.
'Q. What has been your usual type of employment?
'A. Well, I only worked for a few days and that was
'Q. Are you a single man?
'Q. I presume that you have given some thought to
this question since your original apprehension?
'A. Yes, I have.
'Q. And you have been told by probably the District
Attorney of Brown County of your privilege of having an attorney?
'A. I have, sir.
'Mr. Grant: If the Court please, in order to clarify
the record, I have advised Mr. Spanbauer this
morning of the fact that he is entitled to counsel, and I told him that
he has that right under the Constitution, and I explained the procedure
to him quite thoroughly so that I think he understands.
'Q. All right. And do you feel, Mr.
Spanbauer, that you understand that choice of an attorney?
'A. Yes, I do.
'And then the record may show that the defendant in
this case has waived counsel and his waiver is now accepted by the Court
as being an intelligent waiver of his right.'
State v. Strickland, 27 Wis.2d 623, 135 N.W.2d 295
(1965); State ex rel. Burnett v. Burke, 22 Wis.2d 486, 126 N.W.2d 91
In Twining, without expressly so stating, the court
appeared to treat Von Moltke as a case sui generis. Footnote 1 at 435 of
321 F.2d indicates that the court felt that Zerbst and not Von Moltke
was the controlling law even in federal cases
Respecting Von Moltke, however, the court of appeals
said: 'The record does not show that the district court complied with
the requirements of the Von Moltke case * * * in making certain that the
accused's waiver of counsel was intelligently made. We would, however,
be loath to reverse upon that ground alone in view of the movant's
unusual intelligence and obvious experience.' Shelton, 242 F.2d 101, 112
(1957). This statement seems to indicate that the Von Moltke standard is
not by itself considered controlling in federal cases
Butler was thirty-four years old, had a college
degree, had done graduate work in business administration, was employed
by a large corporation and had been convicted previously of a minor but
similar offense. The Seventh Circuit held, Judge Kiley dissenting, that
the failure of the trial court to inform Butler of the provisions of the
Wisconsin Sex Deviate Law, Wis.Stats.Ann. 959.15 (1958 & Supp. 1966),
did not affect his otherwise voluntary waiver of counsel. 360 F.2d at
In addition, the psychiatric reports indicated that
Spanbauer had no appreciation of the
seriousness of the charge or of the suffering he had caused
In Johnson v. Zerbst, the defendants were arrested on
November 21, indicted on January 21, and arraigned, tried, convicted and
sentenced on January 23. They never left prison after November 21, 304
U.S. at 459-460, 58 S.Ct. 1019. It should be noted that in Von Moltke,
where the waiver of counsel was also held invalid, the preliminary
proceedings lasted over a period of seven weeks, not including a later
attempt to withdraw a plea of guilty. 332 U.S. at 711-718, 68 S.Ct. 316
In the hearing before the district court on the
habeas corpus petition, the prosecutor testified on direct examination
that on the morning of the arraignment he had talked with
Spanbauer and advised him of his rights,
including the right to counsel. He testified that 'At each of these
occasions his (Spanbauer's) response was that
he wanted to get the matter over with as quickly as possible.' The
following then ensued:
Q. Did you give him any advice one way or the other
with reference to whether he should accept counsel?
Prosecutor: We had a conversation relative to the
hostility of the community. I believe that I explained to him that the
community as a whole was afraid for the period of three to five weeks
after the particular crimes were committed. I did not say if I were in
his shoes that he should have counsel, but I recall I told him that if
he did not have any money that the county would appoint him counsel. I
further told him on several occasions that because of the particular
attitude of the community that he probably would get a good jolt. But he
was asked on three or four occasions during that half hour that I talked
to him whether or not he wanted counsel, and was informed of his right
Q. What response did he make with refence to whether
he wanted counsel? Prosecutor: He repeated on those occasions that he
wanted to get the matter over with as soon as possible.
One of the officers who accompanied
Spanbauer on the drive from Sheboygan to Wauwatosa testified to
similar answers in response to being informed of his right to court-appointed
counsel if he was indigent. Spanbauer himself
testified that he thought he might get a break from the court and that,
'actually (he) didn't care one way or another, either.'
In Arnold, the Fourth Circuit reversed an order
denying a motion to vacate the ten-year sentence of defendant, who the
record indicated was not 'a normal man,' holding that the duties of the
court 'cannot be discharged in extrajudicial interviews by the probation
officer,' even though defendant had a long criminal record. 271 F.2d at
Kniess had spent about seven years in prison, had
previously been convicted of robbery, grand larceny and possession of
unregistered firearms, conducted himself well in the courtroom and there
was 'no indication of any doubt or confusion' on his part. The Seventh
Circuit held the failure of the trial court to inform Kniess of a
possible defense (an invalid confession) or of the allowable punishment
did not invalidate his waiver of counsel. 264 F.2d at 356