Opposition Brief — Demetrius Jackson, Petitioner v. Ohio

No. 18-1241

In the

Supreme Court of the United States

__________________

DEMETRIUS JACKSON,

v.

STATE OF OHIO,

__________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Ohio

__________________

BRIEF IN OPPOSITION

__________________

MICHAEL C. O’MALLEY

Cuyahoga County Prosecutor

ANTHONY T. MIRANDA

Assistant Prosecuting Attorney

Counsel of Record

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

amiranda@prosecutor.cuyahogacounty.us

(216) 443-7416

Counsel for Respondent

State of Ohio

April 17, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. Whether an interrogation that would violate the

Fifth Amendment if conducted by a police officer

also violates the Fifth Amendment if conducted by

a state-employed CPS caseworker, where the caseworker is required by law to share information

obtained in the interrogation with the police and

the prosecutor.

2. Whether an interrogation that would violate the

Sixth Amendment if conducted by a police officer

also violates the Sixth Amendment if conducted by

a state-employed CPS caseworker, where the caseworker is required by law to share information

obtained in the interrogation with the police and

the prosecutor.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 3

REASONS FOR DENYING THE PETITION. . . . . . 4

I.

The state and circuit court conflict pre-dates

Ohio v. Clark . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II.

This Court has limited Miranda to law

enforcement officers or their agents . . . . . . . . 5

III.

While the lower courts have not uniformly

applied Miranda to social worker interviews,

most courts have adopted a factor-based test

that is inconsistent with Petitioner’s brightline rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV.

The Sixth Amendment does not treat

mandatory reporters as agents of law

enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

TABLE OF AUTHORITIES

CASES

Blanton v. State,

172 P.3d 207 (Okla. Crim. App. 2007) . . . . . . . . 10

Buchanan v. Kentucky,

483 U.S. 402 (1987). . . . . . . . . . . . . . . . . . . . . . . . 6

Buster v. Commonwealth,

364 S.W.3d 157 (Ky. 2012) . . . . . . . . . . . . . . . . . . 4

Colorado v. Connelly,

479 U.S. 157 (1986). . . . . . . . . . . . . . . . . . . . . . . . 8

Commonwealth v. Howard,

845 N.E.2d 368 (Mass. 2006) . . . . . . . . . . 4, 11, 12

Estelle v. Smith,

451 U.S. 454 (1981). . . . . . . . . . . . . . . . . . . . . . . . 6

Howes v. Fields,

565 U.S. 499 (2012). . . . . . . . . . . . . . . . . . . . . . . . 7

Massiah v. United States,

377 U.S. 201 (1964). . . . . . . . . . . . . . . . . . . . . . . 11

Mathis v. United States,

391 U.S. 1 (1968). . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Miranda v. Arizona,

384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . passim

Ohio v. Clark,

135 S. Ct. 2173 (2015). . . . . . . . . . . . . . . . . 4, 5, 12

Pentry v. Johnson,

532 U.S. 782 (2001). . . . . . . . . . . . . . . . . . . . . . . . 6

iv

State v. Bernard,

31 So.3d 1025 (La. 2010). . . . . . . . . . . . . . . . . . . . 9

State v. Gouin,

182 A.3d 28 (R.I. 2018) . . . . . . . . . . . . . . . . . 10, 11

State v. Harper,

613 A.2d 945 (Me. 1992) . . . . . . . . . . . . . . . . . . . 10

State v. Morrell,

424 S.E.2d 147 (N.C. 1993). . . . . . . . . . . . . . . . . 10

State v. Oliveira,

961 A.2d 299 (R.I. 2008) . . . . . . . . . . . . . . 4, 11, 12

United States v. Henry,

447 U.S. 264 (1980). . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Moreno,

36 M.J. 107 (C.M.A. 1992) . . . . . . . . . . . . . . . . . 11

Wilkerson v. State,

173 S.W.3d 521 (Tex. Crim. App. 2005) . . . . . . . . 9

CONSTITUTION AND STATUTES

U.S. Const. amend. V . . . . . . . . . . . . . . . . . 2, 4, 5, 6, 7

U.S. Const. amend. VI . . . . . . . . . . . . . . 2, 4, 5, 11, 12

Ohio Rev. Code § 2151.421. . . . . . . . . . . . . . . . . . . . . 3

1

STATEMENT OF THE CASE

On August 5, 2015, a fourteen-year-old girl, C.H.,

was staying at the home of her adult sister. That

night, C.H. ran to the home of her nearby brother-inlaw “crying” and screaming “he raped me.” She was

referring to thirty-year-old Petitioner Demetrius

Jackson who was at the sister’s home and arrested at

the scene. A Cleveland Police detective visited Jackson

in jail, advised him of his Miranda rights, and Jackson

declined to make a statement.

Holly Mack is a child advocate and social worker

with the Cuyahoga County Division of Children and

Family Services (“CCDCFS”). Her primary duty is to

interview “alleged perpetrators who [CCDCFS]

receive[s] referrals for abuse and neglect.” On August

11, 2015, Mack visited Jackson in the jail. She

identified herself, informed Jackson of what he was

accused of doing, and let him know that anything he

said “can be subpoenaed by the Courts.” Jackson then

stated that he and C.H. engaged in consensual “oral

sex” after which she demanded money. He also

admitted to having a sexually transmitted disease from

a prior sexual encounter.

At trial, C.H. testified that Petitioner ripped her

underwear off, choked her, and put “his penis inside”

her vagina. The State also presented testimony from

a nurse who examined C.H. Seminal fluid was found

in the vaginal swabs taken during the examination, but

a male DNA profile could not be identified. Jackson’s

DNA was identified in the swab of C.H.’s left ear and

the odds of selecting an unrelated African-American

male were one in six billion. Mack testified that

2

Jackson told her he engaged in “oral sex” with C.H.

Jackson testified on his own behalf and claimed that

C.H. and he engaged in consensual sex.

The trial court found Petitioner guilty of two counts

of rape, one count of gross sexual imposition and one

count of kidnapping. It stated that it “didn’t find

anything about Mr. Jackson’s story to be credible” and

did “not find this a peculiarly close case.” At

sentencing, C.H.’s father informed the trial court that

C.H. contracted a sexually transmitted disease from

the rape. Jackson was sentenced to eleven years in

prison.

In a divided decision, the state intermediate

appellate court reversed Jackson’s convictions on the

grounds that Mack was an agent of law enforcement

and her interview of Jackson violated his Fifth and

Sixth Amendment rights. See Pet. App. B. The

majority relied heavily upon Mack’s statutory duty to

share information with law enforcement.

The Supreme Court of Ohio reversed that decision,

holding that there is no evidence “that law enforcement

influenced Mack’s interview of Jackson in anyway.”

See Pet. App. A. The Court also held that a statutory

duty to cooperate with law enforcement did not

transform a social worker into an agent of law

enforcement without evidence “that the social worker

acted at the direction or under the control of law

enforcement.” Pet. App. 16a.

The case was remanded to address Jackson’s

remaining assignments of error.

The state

intermediate appellate court then rejected Jackson’s

3

challenge to the admission of evidence on the grounds

of hearsay as well as his challenge that his convictions

are against the manifest weight of the evidence. See

Pet. App. C. Jackson appealed, and the Supreme Court

of Ohio declined to exercise jurisdiction. See Pet.

App. D.

SUMMARY OF THE ARGUMENT

This Court has held that the “the prosecution may

not use statements . . . stemming from custodial

interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the

privilege against self-incrimination.” Miranda v.

Arizona, 384 U.S. 436, 444 (1966). It defined “custodial

interrogation” as “questioning initiated by law

enforcement officers after a person has been taken into

custody”. Id. (emphasis added). Petitioner argued in

the lower courts that social workers who have a

mandatory duty to share information with law

enforcement are required to issue a Miranda warning

prior to interviewing someone alleged to have

committed child abuse or neglect.

In this case, Petitioner was arrested for the rape of

a girl. He was awaiting trial in jail when he was

interviewed by the social worker. Though she was

required by Ohio Rev. Code § 2151.421 to submit any

information she obtained to law enforcement, she had

no direct communication with police. Information she

obtained was inputted in a computer system and

transmitted to police by another party. Police were not

present during the interview and did not provide

questions for the social worker to ask. She was not

carrying a gun or a badge and lacked the power to

4

arrest Petitioner or detain him against his wishes. The

interview that took place was not a custodial

interrogation requiring a Miranda warning.

REASONS FOR DENYING THE PETITION

I.

The state and circuit court conflict predates Ohio v. Clark.

The Supreme Court of Ohio held that a social

worker is not an agent of law enforcement for purposes

of the Fifth and Sixth Amendments merely because she

has a duty to share information with police. Petitioner

cites to prior decisions of other state courts of last

resort or circuit courts of appeals which have held that

such a duty is sufficient to render her an agent of law

enforcement. See Buster v. Commonwealth, 364 S.W.3d

157, 164-65 (Ky. 2012) (analyzing the Fifth

Amendment); State v. Oliveira, 961 A.2d 299, 310-11

(R.I. 2008) (analyzing the Sixth Amendment);

Commonwealth v. Howard, 845 N.E.2d 368, 372-73

(Mass. 2006) (analyzing the Sixth Amendment).

In 2015, this Court held that “mandatory reporting

statutes alone cannot convert a conversation between

a concerned teacher and her student into a law

enforcement mission aimed primarily at gathering

evidence for a prosecution.” Ohio v. Clark, 135 S. Ct.

2173, 2183 (2015). In that case, a preschool teacher

questioned a three-year-old boy regarding physical

injuries he sustained, and the boy stated they were

caused by the defendant. Clark, 135 S. Ct. at 2178.

The boy’s statement was admitted at trial which the

defendant argued violated the Confrontation Clause of

the Sixth Amendment. Though it declined to “adopt a

5

categorical rule” that non-law enforcement agents were

excluded from the Sixth Amendment, the Court held

that “such statements are much less likely to be

testimonial than statements to law enforcement

officers.” Clark, at 2181.

The cases relied upon by Petitioner pre-date this

Court’s decision in Clark. The bright-line rule adopted

in many of those cases cannot survive Clark. A

mandatory reporting obligation alone is insufficient to

transform a social worker into an agent of law

enforcement.

II.

This Court has limited Miranda to law

enforcement officers or their agents.

The Fifth Amendment to the United States

Constitution guarantees that no person “shall be

compelled in any criminal case to be a witness against

himself”. See Fifth Amend., U.S. Constitution. This

amendment “comprehends not merely a right to consult

with counsel prior to questioning, but also to have

counsel present during questioning if the defendant so

desires.” Miranda v. Arizona, 384 U.S. 436, 470 (1966).

The effect of Miranda is that “the prosecution may not

use statements . . . stemming from custodial

interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the

privilege against self-incrimination.” Miranda, 384

U.S. at 444.

The Court defined “custodial

interrogation” as “questioning initiated by law

enforcement officers after a person has been taken into

custody”. Id. (emphasis added).

6

Contrary to Petitioner’s argument, this Court has

not applied Miranda to non-law enforcement officers.

He primarily cites two cases. First, in Estelle v. Smith,

451 U.S. 454, 456, 468 (1981), this Court addressed the

constitutionality of admitting a defendant’s statements

made to his psychiatrist during a “validly ordered

competency examination.” This Court held that a

defendant “may not be compelled to respond to a

psychiatrist if his statements can be used against him

at a capital sentencing proceeding.” Estelle, 451 U.S.

at 468. The crux of that decision is not that a Miranda

warning must be given before a competency evaluation

but rather that compelled statements may not be

admitted at trial.

This Court has noted that Estelle was limited to the

“distinct circumstances” presented in the case. Estelle,

at 466. It has further noted that the Court has “never

extended Estelle’s Fifth Amendment holding beyond its

particular facts.” Pentry v. Johnson, 532 U.S. 782, 795

(2001); see also Buchanan v. Kentucky, 483 U.S. 402,

423 (1987). There is no compelled testimony in the

underlying case and Estelle is simply inapplicable.

Petitioner also relies upon Mathis v. United States,

391 U.S. 1 (1968). In that case, the defendant was

serving a prison sentence when he was visited by an

“Internal Revenue Agent.” Mathis, at fn. 2. The

defendant identified the signature on a tax return as

his and was subsequently convicted of filing false

claims. Mathis, at 2, fn. 2. The Court held that

Miranda applied because criminal proceedings often do

follow routine tax investigations. Mathis, at 4.

Importantly, Mathis did not address whether the

7

Internal Revenue Agent is a law enforcement agent.

This Court has subsequently interpreted Mathis

narrowly:

In Mathis, an inmate in a state prison was

questioned by an Internal Revenue agent . . . .

The Court of Appeals held that Miranda did not

apply to this interview for two reasons: A

criminal investigation had not been commenced

at the time of the interview, and the prisoner

was incarcerated for an ‘unconnected offense.’

This Court rejected both of those grounds for

distinguishing Miranda, and thus the holding in

Mathis is simply that a prisoner who otherwise

meets the requirements for Miranda custody is

not taken outside the scope of Miranda by either

of the two factors on which the Court of Appeals

had relied.

Howes v. Fields, 565 U.S. 499, 506-07 (2012) (citations

omitted).

In Miranda, this Court was concerned with the

coercive nature of “an interrogation environment”

“created for no purpose other than to subjugate the

individual to the will of his examiner”. Miranda, at

457. The Court noted such police interrogations exist

within an atmosphere of “intimidation” and stressed a

history of police practices which include physical

violence against suspects, “trickery” by having fictitious

witnesses identify the suspect in a line up, and

“deceptive stratagems” involving false legal advice.

Miranda, at 445-56. “The sole concern of the Fifth

Amendment, on which Miranda was based, is

8

government coercion”. Colorado v. Connelly, 479 U.S.

157, 169-70 (1986).

Interviews by social workers share neither the

coercive interrogation atmosphere nor the same history

of abuse criticized in Miranda. Social workers do not

carry a gun or a badge and they have no power to

arrest. There is no evidence in the record that the

social worker in this case had the power to detain

Petitioner or to continue questioning against his

wishes.

In this appeal, Petitioner asks the Court to

significantly expand the application of Miranda beyond

existing precedent. The Court should decline that

invitation.

III.

While the lower courts have not uniformly

applied Miranda to social worker

interviews, most courts have adopted a

factor-based test that is inconsistent with

Petitioner’s bright-line rule.

Petitioner correctly identifies decisions of state

courts of last resort and federal circuit courts that

conflict regarding the applicability of Miranda in social

worker interviews of criminal defendants in custody.

While most of these courts have held, based on the

facts at issue in the respective cases, that a social

worker was acting as an agent of law enforcement, they

have done so without adopting the bright-line rule that

Petitioner requests. The facts typically involve more

evidence of coordination between a social worker and

law enforcement than the mere statutory duty to share

information.

9

No court cited by Petitioner has adopted a

categorical rule that social workers are exempt from

the requirements of Miranda. Instead, the lower

courts, including the Supreme Court of Ohio below,

recognize that the facts of a particular case may

establish that a social worker is acting as an agent of

law enforcement. They have looked to a variety of

factors in determining whether the social worker has

become such an agent. The Court of Criminal Appeals

of Texas referenced an exhaustive list of relevant

questions, including the following:

Did the police arrange the meeting?

Were the police present during the interview?

Did they provide the interviewer with the

questions to ask?

What was the interviewer’s primary reason for

questioning the person?

At whose request did the interviewer question

the arrestee?

Did the defendant believe he was speaking with

a law-enforcement agent, someone cloaked with

actual or apparent authority of the police?

Wilkerson v. State, 173 S.W.3d 521, 530-31 (Tex. Crim.

App. 2005). The Supreme Court of Louisiana provided

additional factors to consider, including “whether the

investigator discussed the case with police prior to the

interview, whether the interview was conducted at the

police’s request, and whether the primary purpose of

the investigator’s visit was to elicit a confession while

in cahoots with law enforcement.” State v. Bernard, 31

So.3d 1025, 1035 (La. 2010).

10

The Court of Appeals of North Carolina held that a

social worker went beyond the statutory duty to report

findings of child abuse to law enforcement and “began

working with the Wikes County Sheriff’s Department

on the case prior to interviewing the defendant.” State

v. Morrell, 424 S.E.2d 147, 153 (N.C. 1993). In Blanton

v. State, the Court of Criminal Appeals of Oklahoma

held that a social worker’s questioning amounted to

custodial interrogation because she was “called to

assist the police in their investigation” and “became

part of the investigative team when she was asked to

view the living conditions, the crime scene, and then

interview the victim.” 172 P.3d 207, 211 (Okla. Crim.

App. 2007).

In the underlying case, a social worker fulfilled her

statutory duty to inform Petitioner that he was alleged

to have committed child abuse or neglect. She told

Petitioner whatever he said would be provided to the

courts. Police were not present during the interview,

did not arrange the interview, and never had any

contact with the social worker. Simply put, the social

worker was not acting as agent of law enforcement.

Some of the cases relied upon by Petitioner are not

on point. In State v. Harper, 613 A.2d 945, 949 fn4

(Me. 1992), the “State conceded at oral argument that

[the social worker] was a government agent to whom

the rules of Miranda apply.” Therefore, the central

issue in this appeal was not actually at issue in that

case. He also cites to State v. Gouin, 182 A.3d 28 (R.I.

2018) as a case supporting his position. But the

defendant in that case conceded that Miranda did not

apply because he was not in custody at the time of the

11

interview. Gouin, 182 A.3d at 32-33. The issue raised

there was whether the statements were voluntarily

made, Gouin, at 34, which is not an issue raised in this

case.

IV.

The Sixth Amendment does not treat

mandatory reporters as agents of law

enforcement.

Petitioner argues separately that the Sixth

Amendment right to counsel prohibits a social worker,

with a mandatory duty to share information with law

enforcement, from interviewing a defendant in jail

after arraignment. Few lower courts have addressed

this issue. See State v. Oliveira, 961 A.2d 299 (R.I.

2008); Commonwealth v. Howard, 845 N.E.2d 368

(Mass. 2006). The decision of the United States Court

of Military Appeals is not on point because the

defendant was not in custody during the interview.

United States v. Moreno, 36 M.J. 107, 112 (C.M.A.

1992) (“appellant was plainly not in custody when,

unaccompanied, he drove to [the social worker’s] office

and permitted himself to be interviewed by her.”)

Oliveira and Howard both rely upon decisions of

this Court that are inapplicable. The Court has held

that after a criminally charged defendant asserts his

right to counsel, law enforcement may not “deliberately

elicit[]” information through the use of an undercover

informant. See Massiah v. United States, 377 U.S. 201,

206 (1964). Law enforcement ‘deliberately elicits’

information when the defendant is in custody, law

enforcement hires an inmate as a paid informant,

specifically directs the inmate to engage the defendant

in conversation, and the inmate is only paid if “he

12

produce[s] useful information”. See United States v.

Henry, 447 U.S. 264, 270-71 (1980). A social worker

interview is distinguishable from the use of a secret

government informant: “An accused speaking to a

known Government agent is typically aware that his

statements may be used against him”. Henry, 447 U.S.

at 273.

It is also necessary to reiterate that both Oliveira

and Howard were decided before this Court’s decision

in Clark. In that case, the Court held that a teacher’s

mandatory reporting obligation did not make her an

agent of law enforcement for purpose of the Sixth

Amendment’s Confrontation Clause. The same should

follow for the Sixth Amendment’s Right to Counsel.

CONCLUSION

For these reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

MICHAEL C. O’MALLEY

Cuyahoga County Prosecutor

ANTHONY T. MIRANDA

Assistant Prosecuting Attorney

Counsel of Record

The Justice Center, 8th Floor

1200 Ontario Street

Cleveland, Ohio 44113

amiranda@prosecutor.cuyahogacounty.us

(216) 443-7416

Counsel for Respondent State of Ohio