(dissenting).
I must respectfully dissent.
This habeas corpus case was tried to the District Court by stipulation on the record of the state court proceedings. To the extent that findings of fact were indisputably made by the state trial judge, those facts are to be taken as true unless they fall within the stated exceptions of 28 U.S.C. § 2254. See note 2 of the majority opinion, supra. To the extent that additional facts were found by the District Judge upon his review of the bare record, without having heard any of the witnesses, we need give such findings no special deference since the District Judge was in no better position to make credibility judgments than we find ourselves today. But conceding for purposes of this opinion each of the so-called disputed facts as found by the District Judge, I find myself in disagreement with the ultimate conclusions reached in the majority opinion that Williams “was denied [his] right to counsel and that he had not voluntarily, intelligently and effectively waived his rights.”
I.
It is not disputed that Williams was advised of his full Miranda rights on three occasions: by Lieutenant Acker*235man of the Davenport Police Department, by the state judge before whom he was brought upon his arrest and by Captain Learning upon his arrival in Davenport. There is no suggestion that the advices given did not comport with constitutional standards or that Williams did not understand their meaning. He expressly stated that he did, and therefore understood, as he was told, that he had the right to remain silent and to be represented by an attorney during questioning. That Williams had thus received.effective advice appears to be conceded by the majority. We must next proceed to a consideration of whether Williams thereafter intelligently and knowingly declined to exercise his rights. Hughes v. Swenson, 452 F.2d 866 (8th Cir. 1971).
At the time of his arrest, Williams had already retained Henry McKnight, a Des Moines attorney. McKnight advised him by telephone not to talk with the police until he returned to Des Moines. While in court at Davenport, Williams observed and asked to speak with a local attorney, Thomas Kelly. Kelly conferred with Williams two times in private. According to Williams, Kelly then advised the police that Williams wouldn’t be talking to them until his return to Des Moines. Thus it is clear to me that Williams was not only aware of his right to counsel, he sought and received the advice of two attorneys and knew that both of them thought he should remain silent. The inference is clear that — putting aside any question of coercion — any waiver thereafter was intelligently and knowingly made. Hughes v. Swenson, supra.
The District Judge held Williams could not effectively waive counsel for purposes of interrogation in the absence of counsel. This was error. While recognizing that the burden of showing a knowing and intelligent waiver is a heavy one, we have held that such waiver can occur notwithstanding that counsel has been appointed. Moore v. Wolff, 495 F.2d 35 (8th Cir. 1974). Waiver is to be judged from the whole record. United States v. Harden, 480 F.2d 649 (8th Cir. 1973). Express words of waiver are not required. Hughes v. Swenson, supra; United States v. Montos, 421 F.2d 215, 224 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970); United States v. Ganter, 436 F.2d 364, 369-370 (7th Cir. 1970); United States v. Hilliker, 436 F.2d 101, 102-103 (9th Cir. 1970), cert. denied, 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971); Bond v. United States, 397 F.2d 162, 165 (10th Cir.), cert. denied, 393 U.S. 1035, 89 S.Ct. 652, 21 L.Ed.2d 579 (1968).
The record reveals that as the police car began its return trip from Davenport to Des Moines, the car was driven by Detective Nelson, with Captain Learning and Williams in the back seat. After a while Williams opened up a conversation, asking such questions as whom the police had talked, to and whether there were any fingerprints. They also talked about police procedures, religion, youth groups and singing. Eventually Learning made his observation about the weather and expressed the hope that Williams would agree to stop and locate the body. (Quoted in majority opinion at 230.) He prefaced his statement by saying this was something he wanted Williams to think about as they were travelling down the road. He concluded this statement with another statement, not quoted in the majority opinion:
I do not want you to answer me. I don’t want to discuss it any further.
The record reveals that sometime later, without any further reference to Learning’s suggestion, Williams suddenly asked, “Did you find her shoes?” He then directed them to a filling station, where they made a fruitless search for the child’s shoes. They returned to the freeway, and as they passed a rest area on their left, Williams asked, “Did you find the blanket?” He then told them he had disposed of the blanket at the rest area. They turned around and returned to the rest area. They did not find the blanket because it had already been located. Again they returned to the freeway and resumed their journey toward Des Moines. Still some distance east of Mitchellville, Williams suddenly said, “I’m going to show you where the *236body is.” They exited from the freeway at the turn-off indicated by Williams, and after one or two false turns, finally came to a place in the road where the body was located in the snow.
Against this massive evidence of knowing and intelligent waiver of the right to silence and to counsel during interrogation, the only fact asserted to the contrary is the statement of Williams, made several times according to Learning, that “[w]hen I get to Des Moines and see Mr. McKnight, I am going to tell you the whole story.” First, this statement is ambiguous on its face. I do not find in this assurance of cooperation an indication “in any manner” that Williams wished to refrain from giving information. See Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602 (1966). There is absolutely nothing in the record to suggest that these statements were made in response to questions by Learning; rather, the evidence is that prior to Williams’ statement that he was going to show them where the body was neither police officer was putting questions to Williams. Williams brought up the shoes, Williams brought up the blanket and Williams volunteered the statement that he was going to show them the location of the body.1
It has been suggested that Williams’ admissions were obtained by ruse and that his Sixth Amendment rights were thus violated. The District Judge’s reliance upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199 (1964), is misplaced. There is no doubt that Williams was in custody and entitled to counsel unless waived. The difference between this case and Massiah, however, is that Williams knew his statements were being noted by police officers, and he had been expressly warned that such statements could be used against him.
I entertain grave doubts whether a federal judge should undertake to decide issues of credibility from a bare record without an independent evidentiary hearing. It was from such findings that the District Judge concluded that Learning had contrived to thwart Williams’ attorneys and thereby deprive him of assistance of counsel. The state trial judge who heard the evidence concluded otherwise; his assessment was sustained by the Supreme Court of' Iowa, and I likewise believe the record supports the conclusions of waiver reached in the state proceedings.
II.
A distinct but factually related issue to be resolved is whether Williams’ statements were involuntary and therefore produced in violation of his Fifth Amendment rights. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938).
No promises were made to Williams, and the record does not support any inference that the statements resulted from this sort of inducement. See Hunter v. Swenson, 504 F.2d 1104 (8th Cir., 1974); United States v. Johnson, 466 F.2d 1210 (8th Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 974, 35 L.Ed.2d 279 (1973).
I am equally unpersuaded that the conversations in the police automobile, or, for that matter, the totality of the circumstances were so coercive that the statements of Williams must be considered the product of a will overborne. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 747 (1963); Iverson v. North Dako*237ta, 480 F.2d 414 (8th Cir.), cert. denied, 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 345 (1973). Williams himself initiated the discussions related to the crime. Williams himself asked questions about the investigation. He was not subjected to an intrusive examination. Each significant statement (the shoes, the blanket, the location of the body) was triggered, not by a police question, but by something Williams saw as they travelled along the freeway — -a filling station, a rest area, an exit ramp.2
Certainly, Officer Learning planted a thought that it would be useful and decent to locate the body as they passed through the area. But he also told Williams not to answer — just to think about it. If such conversations can be deemed coercive, we will have turned the criminal justice system upon its head. As Mr. Justice Cardozo once wrote:
[JJustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934).
III.
I have carefully reviewed the record of the entire state proceedings. What transpired in the police automobile is clear. Williams understood his rights; he was promised nothing; he was not coerced. To'say this much is not to approve of any techniques which involve misrepresentations to counsel, if in fact Learning was guilty of such acts as the District Judge found. But addressing myself to the findings of the state district judge, I believe they are supported by the record. We should not advance the Constitutional protection of the Fifth and Sixth Amendments to strike down admissions knowingly and intelligently made after full Miranda warnings and advice of counsel on such unsupported factual inferences as that Williams “gave several indications that he did not want to talk about the case until after he arrived in Des Moines.” (Majority opinion at 234.) A fair reading of the record is that each statement was not in response to a specific inquiry but was spontaneous. See United States v. Stabler, 490 F.2d 345, 350-351 (8th Cir. 1974).
This was a brutal crime.3 The evidence of Williams’ guilt was overwhelming. No challenge is made to the reliability of the fact-finding process; the statements dealt not with guilt but with the location of evidence, and were corroborated by other evidence. I cannot but assume that the alleged “broken promise” of Captain Learning is at the root of the result reached in this case. If, as I believe, there was no violation of Williams’ Fifth or Sixth Amendment rights, then the effect is to apply the federal exclusionary rule in a state case to improve future police procedures. This is not the case in which to make that point. See Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).4
. If, as the state judge found, an agreement not to question Williams in the car had been made with counsel, this agreement could hardly be said to preclude a waiver of counsel during a pre-trial conversation, regardless of the serious reflection thereby cast upon the police procedures employed. It is the accused in custody who waives, not his counsel, and Williams was never at any time told in any way that he had lost either his right to remain silent or to have counsel present during an interrogation. Neither does the record warrant any inference of incapacity because Williams happened to be an escapee from a mental institution. The state district judge ruled against Williams on this point, permitting this fact in evidence only as bearing upon his criminal intent, and the point is not preserved on this appeal.
. Williams testified at the suppression hearing and once again during the trial, in chambers. He asserted nothing in such testimony from which the reviewing court could find additional evidence of mistake or coercion.
. The medical examiner testified that he found positive evidence of seminal fluid in the mouth, rectum and vagina of the body of the ten-year-old child. Death was by suffocation.
. Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.
417 U.S. at 446, 94 S.Ct. at 2365.