Amicus Curiae Brief — Ethan Guillen, Petitioner v. United States
Supreme Court briefOct 27, 2021
Ask Donna
What actually matters in this document.
Text
No. 21-5795
In the
Supreme Court of the United States
ETHAN GUILLEN,
Petitioner,
v.
UNITED STATES,
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Tenth Circuit
BRIEF OF CRIMINAL LAW AND PROCEDURE
PROFESSORS, AS AMICI CURIAE IN
SUPPORT OF PETITIONER
Professor Colin Miller
1525 Senate Street, Room 316
Columbia, SC 29208
(803) 777-3433
mille933@law.sc.edu
James C. Dugan
Counsel of Record
A lina Jamil Mian
Michelle Mlacker
Willkie Farr
& Gallagher LLP
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
jdugan@willkie.com
Counsel for Amici Curiae
308164
i
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICI
CURIAE.................................................................. 1
SUMMARY OF ARGUMENT ..................................... 9
ARGUMENT ............................................................. 10
I.
THIS CASE DEMONSTRATES THE
INAPPLICABILITY OF THE MARKS
PRINCIPLE TO SEIBERT WHERE
THERE
IS
NO
COMMON
DENOMINATOR BETWEEN THE
RATIONALE OF THE PLURALITY
AND CONCURRING OPINION. ............... 10
A.
The Seibert Ruling Resulted in No
Clear Consensus. ..................................... 11
B.
Justice Kennedy’s Concurrence
Does Not Provide the Narrowest
Grounds for the Decision. ........................ 12
II.
COURTS
ADOPTING
JUSTICE
KENNEDY’S
SEIBERT
CONCURRENCE RUN AFOUL OF
THIS
COURT’S
WELLESTABLISHED
MIRANDA
PRECEDENT. ............................................. 17
A.
Under This Court’s Miranda
Precedent, an Officer’s Subjective
Intent Should Not Be OutcomeDeterminative. ......................................... 18
B.
Courts Routinely Credit an Officer’s
Statements Regarding Subjective
Intent Over Objective Evidence of a
Miranda Violation. .................................. 20
ii
III.
THE HYBRID APPLICATION OF
THE SEIBERT PLURALITY AND
JUSTICE
KENNEDY’S
CONCURRENCE
FURTHER
ERODES
KEY
MIRANDA
PROTECTIONS. ......................................... 21
IV.
IN DECIDING WHETHER TO
GRANT CERTIORARI, THIS COURT
SHOULD
CONSIDER
THE
ALARMINGLY HIGH PERCENTAGE
OF
PEOPLE,
PARTICULARLY
YOUNG ADULTS, WHO ARE
SUSCEPTIBLE
TO
COERCIVE
INTERROGATION
TECHNIQUES
AND FALSELY CONFESS. ....................... 25
A.
Modern Police Interrogations Result
in High Rates of False Confessions. ....... 26
B.
Teenagers Falsely Confess at
Higher Rates Due to Their Age and
Susceptibility. .......................................... 28
C.
False Confessions Carry a Heavy
Biasing Effect........................................... 30
CONCLUSION .......................................................... 31
iii
TABLE OF AUTHORITIES
Cases
Page(s)
Berkemer v. McCarty,
468 U.S. 420 (1984) .............................................. 18
Commonwealth v. Selby,
420 Mass. 656 (Mass. 2004) ................................. 27
Corley v. United States,
556 U.S. 303 (2009) .............................................. 26
Dickerson v. United States,
530 U.S. 428 (2000) ........................................ 20, 26
Edwards v. United States,
923 A.2d 840 (D.C. 2007) ......................... 13, 14, 23
Fernandez v. Lee,
No. 10 Civ. 9011(ALC) (JCF), 2012
WL 4473294 (S.D.N.Y., July 12,
2012) ............................................................... 15, 16
Frazier v. Cupp,
394 U.S. 731 (1969) .............................................. 27
Lornitis v. State,
394 So. 2d 455 (Fla. Dist. Ct. App.
1981) ..................................................................... 19
Marks v. United States,
430 U.S. 188 (1977) ...................................... passim
Miranda v. Arizona,
384 U.S. 436 (1966) ...................................... passim
iv
Missouri v. Seibert,
542 U.S. 600 (2004) ...................................... passim
Morse v. Nevada Attorney General,
687 F. App’x 662 (9th Cir. 2017) ................... 15, 16
Morse v. Nevada,
No. 55271, 2011 WL 2748846 (Nev.,
July 14, 2011) ................................................. 15, 16
Neri v. Hornbreak,
550 F.Supp.2d. 1143 (C.D. Cal. 2008) ........... 20, 21
New York v. Quarles,
467 U.S. 649 (1984) ........................................ 18, 19
People v. Verigan,
488 P.3d 75 (Colo. App. 2015) .............................. 17
Ramirez-Marentes v. Ryan,
No. SACV-05,551 GHK (CW), 2010
WL 2902524 (C.D. Cal. 2010) .............................. 21
Reyes v. Lewis,
833 F.3d 1001 (9th Cir. 2016) ........................ 17, 23
Rhode Island v. Innis,
446 U.S. 291 (1980) ........................................ 19, 20
State v. Fleurie,
968 A.2d 326 (Vt. 2008) ................................. 20, 21
State v. Martinez,
No. 1 CA-CR 13-0107, 2014 WL
5342708 (Ariz. App., Oct. 21, 2014). .................... 22
v
State v. Medley,
787 S.E.2d 847 (S.C. Ct. App. 2016) .................... 15
United States v. Capers,
627 F.3d 470 (2nd Cir. 2010) ......................... 13, 20
United States v. Courtney,
463 F.3d 333 (5th Cir. 2006) .......................... 13, 24
United States v. Guillen,
995 F.3d 1095 (10th Cir. 2021) ........................... 13
United States v. Guillen,
No. 17-CR-1723 (WJ), 2018 WL
2075457 (D.N.M.), (D.N.M. May 3,
2018) ..................................................................... 18
United States v. Heron,
564 F.3d 779 (7th Cir. 2009)……...... ................... 23
United States v. Lawton,
216 F.Supp.3d 1281 (D. Kan. 2016) .................... 15
United States v. Naranjo,
426 F.3d 221 (3d Cir. 2005) ........................... 13, 18
United States v. Nuñez,
478 F.3d 663 (5th Cir. 2007) ................................ 24
United States v. Price,
No. 04-40035-SAC, 2004 WL
2457858 (D. Kan., Oct. 22, 2004) ......................... 16
United States v. Stewart,
191 F. App’x 495 (7th Cir. 2006) ......................... 23
vi
United States v. Stewart,
388 F.3d 1079 (7th Cir. 2004) .............................. 23
United States v. Stewart,
536 F.3d 714 (7th Cir. 2008) .......................... 18, 23
United States v. Street,
472 F.3d 1298 (11th Cir. 2006) ............................ 13
United States v. Torres-Lona,
491 F.3d 750 (8th Cir. 2007) ................................ 13
United States v. Williams,
435 F.3d 1148 (9th Cir. 2006) ........................ 12, 13
United States v. Williams,
681 F.3d 35 (2nd Cir. 2012) ................................. 20
Statues
U.S. Const. amend. V.. ........................................ 19, 25
Other Authorities
Brandon Garrett, Contaminated
Confessions Revisited, 101 VA. L.
REV. 395 (2014) .............................................. 26, 29
Brandon Garrett, The Substance of
False Confessions, 62 STAN. L. REV.
1051 (2010) ........................................................... 28
David Coffey, Why do people confess to
crimes they didn’t commit?,
Livescience (2020),
https://www.livescience.com/whypeople-fasely-confess-to-crimes.html ............ 27, 28
vii
Grisso, T., Steinberg, L., Woolard, J. et
al., Juveniles' Competence to Stand
Trial: A Comparison of Adolescents'
and Adults' Capacities as Trial
Defendants, 27 LAW HUMAN
BEHAVIOR 333 (2003) ........................................ 29
Jason Mandelbaum and Angela
Crossman, No illusions:
Developmental considerations in
adolescent false confessions, CYF
News (2004) .......................................................... 28
Leading Police Consulting Group Will
No Longer Teach the Reid Technique,
Innocence Project (2017),
https://innocenceproject.org/policeconsultants-drop-reid-technique/ ........................ 27
Locke Houston, Miranda-in-the-Middle:
Why Justice Kennedy’s Subjective
Intent of the Officer Test in Missouri
v. Seibert is Binding and Good
Public Policy, 82 MISSISSIPPI LAW
JOURNAL 1129, 1146-50 (2013) ................... 23, 24
Maurice Possley, Martin Tankleff, The
National Registry of Exonerations
(2020),
https://www.law.umich.edu/special/e
xoneration/Pages/casedetail.aspx?cas
eid=3675 ............................................................... 30
National Registry of Exonerations,
https://www.law.umich.edu/special/e
xoneration/Pages/about.aspx ............................... 28
viii
Oberlander, L. B., & Goldstein, N. E., A
review and update on the practice of
evaluating Miranda comprehension,
19 (4) BEHAVIORAL SCIENCES &
THE LAW 453 (2001)........................................... 29
Saul M. Kassin, et al., Police-Induced
Confessions: Risk Factors and
Recommendations, 34 J. LAW &
HUMAN BEHAVIOR 7, 14 (2010). ......... 26, 27, 31
Saul M. Kassin, False Confessions:
Causes, Consequences, and
Implications for Reform, 1 SAGE J.
112 (2014) ............................................................ 25
Saul M. Kassin, Why Confessions
Trump Innocence, 67 AM.
PSYCHOL. 431 (2012) ......................................... 31
Steven A. Drizin & Richard A. Leo, The
Problem of False Confessions in the
Post-DNA World, 82 N.C. L. REV.
891 (2004) ....................................................... 26, 31
Viljoen, J. L., Klaver, J., & Roesch, R.,
Legal Decisions of Preadolescent and
Adolescent Defendants: Predictors of
Confessions, Pleas, Communication
with Attorneys, and Appeals, Law
and Human Behavior, 29(3), 253
(2005) .................................................................... 28
ix
Why are Youth Susceptible to False
Confessions?, Innocence Project
(2015),
https://innocenceproject.org/why-areyouth-susceptible-to-falseconfessions/ ..................................................... 29, 30
1
STATEMENT OF INTEREST OF AMICI
CURIAE1
Amici curiae are fifty-eight law professors and
scholars at U.S. law schools who teach, research, and
write about criminal law and criminal procedure.
They share a common interest in ensuring a proper,
practical application of this Court’s precedent
stemming from Miranda v. Arizona.
Colin Miller
Professor of Law
University of South Carolina School of Law
Deborah Aherns
Associate Professor of Law
Seattle University School of Law
Maryam Ahranjani
Don L. & Mabel F. Dickason Professor
University of New Mexico School of Law
Peter Arnella
Professor of Law Emeritus
UCLA School of Law
1 All parties were provided proper notice and have consented to
the filing of this brief pursuant to the Court’s Rule 37.2(a).
Pursuant to the Court’s Rule 37.6, we note that no part of this
brief was authored by counsel for any party, and no person or
entity other than amici or their members made any monetary
contribution to the preparation or submission of this brief.
2
Shima Baradaran Baughman
Associate Dean of Research and Faculty
Development
University of Utah S.J. Quinney College of
Law
Lara Bazelon
Professor of Law and Director
Criminal & Juvenile Justice and Racial
Justice Clinic
University of San Francisco School of Law
Valena Beety
Professor of Law and Deputy Director
Academy for Justice
Arizona State University Sandra Day
O’Connor College of Law
John Blume
Samuel F. Leibowitz Professor of Trial
Techniques
Cornell Law School
Michal Buchhandler-Raphael
Assistant Professor of Law
Widener Commonwealth Law School
John Burkoff
Professor Emeritus of Law
University of Pittsburgh School of Law
Geoffrey Corn
Gary A. Kuiper Distinguished Professor
National Security Law
South Texas College of Law Houston
3
Russell Covey
Professor of Law
Georgia State University College of Law
Steven Duke
Professor Emeritus of Law
Yale Law School
Jules Epstein
Edward D. Ohlbaum Professor of Law
Temple University Beasley School of Law
Marc Falkoff
Professor of Law & Interim Associate Dean
for Academic Affairs
Northern Illinois University College of Law
Ian P. Farrell
Associate Professor of Law
University of Denver Sturm College of Law
Brian Gallini
Dean and Professor of Law
Willamette University College of Law
Norman Garland
Professor of Law
Southwestern Law School
Brandon Garrett
L. Neil Williams, Jr. Professor of Law
Duke University School of Law
4
Michael Gentithes
Associate Professor
University of Akron School of Law
Cynthia Godsoe
Professor of Law
Brooklyn Law School
Bruce Green
Louis Stein Chair of Law; Director, Stein
Center
Fordham University School of Law
Catherine Grosso
Professor of Law
Michigan State University College of Law
Alexis J. Hoag
Assistant Professor of Law
Brooklyn Law School
Thaddeus Hoffmeister
Professor of Law
University of Dayton School of Law
Andrew Horwitz
Assistant Dean for Experiential Education
Roger Williams University School of Law
David Jaros
Professor
University of Baltimore School of Law
5
Lewis Katz
John C. Hutchins Professor Emeritus of
Law
Case Western University School of Law
Kit Kinports
Professor of Law
Penn State Law
Dan Kobil
Professor of Law
Capital University Law School
Richard Leo
Hamill Family Professor of Law and
Psychology
University of San Francisco School of Law
Ken Levy
Holt B. Harrison Professor of Law
Paul M. Hebert Law Center
Louisiana State University
Katherine Macfarlane
Associate Professor of Law
Southern University Law Center
Justin Marceau
Professor of Law
University of Denver Sturm College of
Law
6
M. Isabel Medina
Ferris Distinguished Professor of Law
Loyola University New Orleans College of
Law
Daniel Medwed
University Distinguished Professor of Law
and Criminal Justice
Northeastern University School of Law
Michael Meltsner
Matthews Distinguished University
Professor of Law
Northeastern University School of Law
Rachel Moran
Associate Professor of Law
University of St. Thomas School of Law
Jerry Norton
Professor Emeritus
Loyola University Chicago School of Law
Anna Offit
Assistant Professor of Law
SMU Dedman School of Law
Timothy O’Neill
Professor Emeritus of Law
University of Illinois Chicago School of Law
Leroy Purnell
Professor of Law
Florida A&M University College of Law
7
William Quigley
Emeritus Professor of Law
Loyola University New Orleans College of
Law
Deborah Ramirez
Professor of Law and Faculty Co-Director
Center for Law, Equity and Race
Northeastern University School of Law
Itay Ravid
Assistant Professor of Law
Villanova University, Charles Widger
School of Law
L. Song Richardson
President
Colorado College
Ira P. Robbins
Professor of Law and Justice
American University Washington College of
Law
Josephine Ross
Professor of Law
Howard University School of Law
David Rudovsky
Senior Fellow
University of Pennsylvania Carey School of
Law
8
Jonathan Simon
Lance Robbins Professor of Criminal Justice
Law
University of California, Berkeley, School of
Law
Dean A. Strang
Distinguished Professor in Residence
Loyola University Chicago School of Law
Patrice Amandla Sulton
Professorial Lecturer in Law
George Washington University Law
School
Katharine Tinto
Clinical Professor of Law
University of California, Irvine School of
Law
Rodney Uphoff
Elwood L. Thomas Missouri Endowed
Professor Emeritus of Law
University of Missouri School of Law
Rebecca Wexler
Assistant Professor of Law
University of California, Berkeley, School of
Law
Kenneth Williams
Professor of Law
South Texas College of Law Houston
9
Michael A. Wolff
Professor Emeritus
Saint Louis University School of Law
Ellen Yaroshefsky
Associate Dean for Research and Faculty
Development
Hofstra University Maurice Deane School of
Law
SUMMARY OF ARGUMENT
Since 2004, this Court’s plurality decision in
Missouri v. Seibert, 542 U.S. 600 (2004) has been
subject to widely conflicting interpretations.
A
number of lower courts, claiming to follow Marks v.
United States, 430 U.S. 188 (1977), have applied
Justice Kennedy’s concurrence, and the subjective
test set forth therein, on the mistaken premise that it
is the narrowest ground supporting the Seibert
holding, even though it is the opinion of only a single
Justice. Other courts, grappling with the lack of a
common denominator between the Seibert plurality
opinion and Justice Kennedy’s concurrence, have
chosen to apply the objective test adopted by the
plurality. Other courts have adopted a hybrid test
consisting of elements of both opinions.
The lack of any uniform rule governing the
admissibility of post-Miranda confessions has
resulted in disparate and inequitable treatment for
criminal defendants like Ethan Guillen, who, for
whatever reason, make incriminatory statements
prior to receiving a Miranda warning. In the absence
of clear guidance, the protections afforded by
10
Miranda’s warning requirements have been eroded.
This Court should therefore grant the petition for
certiorari to clarify the proper test that should apply
to guard against the admission of tainted confession
evidence.
Vigorous Miranda protections are particularly
important for adolescents such as 18-year-old Ethan
Guillen. A growing body of research has illuminated
an unacceptably high rate of false confessions among
teenage criminal defendants, who are especially
vulnerable to coercive, if not illegal, interrogation
techniques. Where a false confession has been
admitted into evidence, no amount of recanting or
scientifically sound exculpatory evidence can
guarantee a fair trial. And even where a confession
cannot be shown to be false, confession evidence
carries a heavy biasing effect that colors the minds of
investigators and juries alike.
ARGUMENT
I.
THIS CASE DEMONSTRATES THE
INAPPLICABILITY OF THE MARKS
PRINCIPLE
TO
SEIBERT
WHERE
THERE IS NO COMMON DENOMINATOR
BETWEEN THE RATIONALE OF THE
PLURALITY
AND
CONCURRING
OPINION.
In Marks, this Court articulated a standard for
lower courts to follow when assessing the precedential
effect of a plurality opinion–namely, that the holding
of a plurality decision should “be viewed as th[e]
11
position taken by those [m]embers who concurred in
the judgment on the narrowest grounds.”2
However, Seibert illustrates the limits of Marks’
principle. Courts interpreting Seibert under the
Marks principle have been unable to agree on which
opinion represents the narrowest grounds supporting
the decision of those who concurred in the judgment,
leading to a split among the lower courts as to the
precedent established by Seibert.
A.
The Seibert Ruling Resulted in No Clear
Consensus.
The Seibert court found in favor of the appelleedefendant through the judgment of five justices: a
four-member plurality and Justice Kennedy’s solo
concurrence.
There, defendant challenged the
admissibility of her post-Miranda statements where
she confessed, received Miranda warnings, and again
repeated her confession.3 The Seibert plurality held
that, for any two-stage interview, the sufficiency of
Miranda warnings hinged upon five factors: “the
completeness and detail of the questions and answers
in the first round of interrogation, the overlapping
content of the two statements, the timing and setting
of the first and the second, the continuity of police
personnel, and the degree to which the interrogator’s
questions treated the second round as continuous with
the first.”4
2 Marks v. United States, 430 U.S. 188, 193 (1977).
3 Missouri v. Seibert, 542 U.S. 600, 604-06 (2004).
4 Id. at 615.
12
Concurring only in the judgment, Justice Kennedy
found that, in a two-stage interrogation, the
admissibility of the post-Miranda warning should not
hinge upon an “objective inquiry from the perspective
of the suspect,” as the plurality concluded.5 Rather,
admissibility of the post-warning statement should
depend upon whether an officer intentionally
withheld Miranda warnings to undermine the
protection’s efficacy.6 When there is a finding that the
officer intentionally delayed a Miranda warning, postwarning statements must be excluded under Miranda
unless the police took “specific, curative steps,” such
as: (1) “a substantial break in time and circumstances
between the prewarning statement and the Miranda
warning;” and (2) “an additional warning that
explains the likely inadmissibility of the prewarning
custodial statement.”7
In determining whether
officers employed a deliberate two-step strategy to
circumvent Miranda, courts consider evidence of the
officer’s subjective state of mind, such as the officer’s
testimony.8
B.
Justice Kennedy’s Concurrence Does Not
Provide the Narrowest Grounds for the
Decision.
Select appellate courts, including the Tenth Circuit
in Guillen, have applied the Marks principle to Seibert
to conclude that Justice Kennedy’s concurrence is the
5 Id. at 621-22 (Kennedy, J. concurring).
6 Id.
7 Id. at 622.
8 See, e.g., United States v. Williams, 435 F.3d 1148, 1158 (9th
Cir. 2006).
13
controlling opinion.9 Under Marks, where “no single
rationale explaining the result enjoys the assent of
five Justices,” the holding of the Court “may be viewed
as that position taken by those Members who
concurred in the judgments on the narrowest
grounds.”10
The Tenth Circuit applied Marks and concluded that
Justice Kennedy’s concurrence fit within the Seibert
plurality ruling on the admissibility of confessions
following midstream Miranda warnings.11
Though Justice Kennedy’s concurrence is narrower
than the plurality opinion in some respects, his
opinion is also broader in other, critical
circumstances.12
Justice Kennedy’s concurrence narrows the Seibert
plurality in instances where police officers do not use
9 E.g., United States v. Guillen, 995 F.3d 1095, 1125 (10th Cir.
2021)(“[t]here is a coherent way to apply Marks here, which no
doubt explains why most courts have reached the same
conclusion: Justice Kennedy’s concurrence in Seibert is the
controlling opinion from that case.”); United States v. Capers, 627
F.3d 470, 476 (2nd Cir. 2010); United States v. Street, 472 F.3d
1298, 1313 (11th Cir. 2006); United States v. Courtney, 463 F.3d
333, 338 (5th Cir. 2006); Williams, 435 F.3d at 1158; United
States v. Naranjo, 426 F.3d 221, 231 (3d Cir. 2005); United States
v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007).
10 Marks, 430 U.S. at 193 (internal quotation marks omitted).
11 Guillen, 995 F.3d. at 1119.
12 See, e.g., Edwards v. United States, 923 A.2d 840, 848, n.10,
n.02-CE-1068 (D.C. 2007) (“As the government points out,
Justice Kennedy’s test is narrower than the plurality’s in that it
would only apply to the deliberate use of a two-step procedure,
but, within that subset of cases, it is broader in that it would not
allow admission of a suspect’s statements unless curative steps
were taken even if a court determined that the Miranda
warnings could function effectively.”).
14
a deliberate two-step interrogation strategy.13
Imagine a scenario where a suspect produces a
detailed confession while seated in a police station
and the questioning officer fails to appreciate that the
suspect is in fact in custody. The officer then
Mirandizes the suspect and elicits a substantially
similar confession post-Miranda.
Given the significant overlap of the two rounds of
interrogation, the continuous nature of the
questioning, the continuity of police personnel, and
the extent to which the second round of interrogation
followed the first, the suspect’s confession would
almost certainly be inadmissible.14 Meanwhile, under
Justice Kennedy’s concurrence, the confession would
be admissible because the officer did not use a
deliberate two-step interrogation strategy.15
But Justice Kennedy’s concurrence is broader than
the Seibert plurality in cases where police officers use
a deliberate two-step interrogation strategy.16 Justice
Kennedy found that post-warning statements “related
to the substance of prewarning statements must be
excluded absent specific, curative steps” where police
officers use a deliberate two-step interrogation
strategy.17 On the other hand, under the Seibert
plurality, such post-warning statements can be
admissible even without specific, curative steps.18 A
13 See id.
14 See Seibert, 542 U.S. at 616.
15 See Seibert, 542 U.S. at 620 (Kennedy, J., concurring) (“An
officer may not realize that a suspect is in custody and warnings
are required.”).
16 See Edwards, 923 A.2d at 848.
17 See Seibert, 542 U.S. at 621.
18 See id.
15
hypothetical is again instructive here: assume that a
police officer questions a suspect – first outside and
then inside his home. Using a deliberate two-step
interrogation strategy, the officer asks an open-ended
question, obtains a general confession, Mirandizes the
suspect, and then elicits a detailed confession. The
suspect’s second confession would be inadmissible
under Justice Kennedy’s concurring opinion because
the officer did not take any “specific, curative steps.”19
However, the same post-warning confession, under
the Seibert plurality, would likely be admitted where
the questions and answers in the first round of
interrogation were neither complete nor detailed, the
two confessions did not feature much overlap, and
though there was a change in the setting of the
interrogations, neither of which took place at a police
station.20
The disparate application of the Seibert plurality
and Justice Kennedy’s concurrence is not merely
academic conjecture.21 This exact scenario has been
borne out in Morse v. Nevada.22 In that case, the
Supreme Court of Nevada deemed a post-warning
admission following an earlier, pre-warning
statement admissible without citing to Justice
Kennedy’s
concurrence
or
addressing
“the
23
deliberateness question it poses.” The Morse court
19 See id.
20 See id. at 616.
21 See Morse v. Nevada Attorney General, 687 F. App’x 662, 663
(9th Cir. 2017).
22 Morse v. Nevada, No. 55271, 2011 WL 2748846 (Nev., July 14,
2011).
23 Morse, 687 F. App’x at 663; see also State v. Medley, 787 S.E.2d
847, 852-53 (S.C. Ct. App. 2016); United States v. Lawton, 216 F.
Supp. 3d 1281, 1294-95 (D. Kan. 2016); Fernandez v. Lee, No. 10
16
deemed the Miranda warnings preceding the
interview effective under the Seibert plurality where
the “discussion in the vehicle was informal,
conversational, and frequently veered away from the
topic of [Defendant’s] ‘mistake’” and where, “[u]pon
entering the more formal setting of the interview
room, [Defendant] would have faced a genuine choice
about whether to continue speaking.”24 In upholding
the denial of defendant’s habeas petition, the Ninth
Circuit held that the Supreme Court of Nevada’s
opinion was not an unreasonable application of the
Seibert plurality.25 The Ninth Circuit added that if it
were reviewing the case de novo under Justice
Kennedy’s concurrence, it “might well have” deemed
the post-warning statement inadmissible because the
officer employed neither of the curative measures
identified by Justice Kennedy.26 Specifically, the
Ninth Circuit noted that it “might well have concluded
that the ‘break in time and circumstances between the
prewarning statement and the Miranda warning,’ was
insufficient to ensure that [Defendant] could
‘distinguish the two contexts and appreciate that the
interrogation ha[d] taken a new turn.’”27 The Ninth
Circuit likewise determined that at no point did the
detective “warn [Defendant] that his statements in
the police car were likely inadmissible.”28
Civ. 9011(ALC) (JCF), 2012 WL 4473294, at *11 (S.D.N.Y., July
12, 2012); United States v. Price, No. 04-40035-SAC, 2004 WL
2457858, at *4-*5 (D. Kan., Oct. 22, 2004).
24 Morse, 2011 WL 2748846, at *2.
25 See id.
26 Morse, 687 F. App’x at 664.
27 Seibert, 542 U.S. at 622.
28 See id.
17
Blanket application of the Marks principle to Seibert
creates the illogical result where certain post-warning
statements that may be admissible under the Seibert
plurality could be inadmissible under Justice
Kennedy’s concurrence.
Yet some post-warning
statements that could be admissible under Justice
Kennedy’s concurrence may be inadmissible under
the Seibert plurality.29
II.
COURTS
ADOPTING
JUSTICE
KENNEDY’S SEIBERT CONCURRENCE
RUN AFOUL OF THIS COURT’S WELLESTABLISHED MIRANDA PRECEDENT.
This Court’s long-established precedent in Miranda
and Justice Kennedy’s Seibert concurrence are
In Miranda, this Court
profoundly at odds.30
established that “a [Miranda] warning is a clearcut
fact . . . [designed] to insure that the individual knows
he is free to exercise the privilege [against self-
29 See, e.g., Reyes v. Lewis, 833 F.3d 1001, 1008-09 (9th Cir. 2016)
(Callahan, J., dissenting) (“There are likely to be cases involving
deliberate Miranda violations where most of the plurality’s
‘effectiveness factors’ are met but, because no explanation of the
prewarning statement's inadmissibility or other ‘specific,
curative step’ was taken, Justice Kennedy’s curative measures
requirement isn’t.”); People v. Verigan, 488 P.3d 75, 82 (Colo.
App. 2015), aff’d on other grounds, 420 P.3d 247 (Colo. 2018)
(“Because, no matter the facts of a given case, the four-justice
plurality and Justice Kennedy would apply wholly different
rules, neither the plurality’s five-factor test, nor Justice
Kennedy’s rule, nor any part of either, enjoyed the assent of five
justices.”).
30 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Seibert, 542
U.S. 600.
18
incrimination].”31
The Miranda requirement is
measured objectively and the “proper inquiry [is]
whether a reasonable person in the suspect’s position
would have understood his situation as the functional
equivalent of formal arrest.”32 Lower courts applying
Justice Kennedy’s Seibert concurrence have
improperly held that an officer’s subjective intent can
be outcome determinative when assessing whether a
deliberate violation of Miranda has occurred in a
question-first interrogation.33
A.
Under This Court’s Miranda Precedent,
an Officer’s Subjective Intent Should Not
Be Outcome-Determinative.
This Court’s persistent findings that an officer’s
subjective intentions should not determine whether
an individual’s Miranda rights have been violated are
31 See Miranda, 384 U.S. at 469.
32 See United States v. Guillen, No. 17-CR-1723 (WJ), 2018 WL
2075457 (D.N.M.), *11 (D.N.M. May 3, 2018) (citing Berkemer v.
McCarty, 468 U.S. 420, 442 (1984)).
33 See United States v. Stewart, 536 F.3d 714, 720 (7th Cir. 2008)
(affirming district court finding that officer’s subjective intent
evidenced no deliberate attempt to circumvent Miranda
notwithstanding officer’s admission that he should have given
Miranda warnings earlier but chose not to); Naranjo, 223 F.
App’x at 168-69 (affirming district court finding that officer did
not deliberately delay Miranda warnings because the officer
testified that he believed Miranda warnings were not required
until the suspect was under arrest, even though the officer had
handcuffed and interrogated the suspect at length).
19
in direct conflict with Justice Kennedy’s subjectivebased deliberateness test in Seibert.34
In Rhode Island v. Innis, this Court concluded that
any words or actions that the police should know
would be reasonably likely to elicit incriminating
responses would be analyzed by focusing primarily
upon the perceptions of the suspect, rather than the
intent of the police.35 This Court reasoned that “[t]his
focus reflects the fact that the Miranda safeguards
were designed to vest a suspect in custody with an
added measure of protection against coercive police
practices, without regard to objective proof of the
underlying intent of the police.”36 In Lornitis v. State,
the district court noted that “[w]hile Innis recognizes
that the officer’s subjective intent may tend to prove
the objective effect of his words or actions, the
prescribed inquiry is whether the officer should have
known that his words or actions were ‘reasonably
likely to elicit incriminating responses.’”37
The subversion of Miranda and its progeny carries
illogical consequences for Ethan Guillen and countless
others similarly situated.
This Court clearly
delineated the boundaries for establishing when
police conduct violates an individual’s Fifth
34 See, e.g., Rhode Island v. Innis, 446 U.S. 291 (1980); Lornitis
v. State, 394 So. 2d 455, 458 (Fla. Dist. Ct. App. 1981); New York
v. Quarles, 467 U.S. 649, 655-56 (1984).
35 Innis, 446 U.S. at 301.
36 Id.
37 Lornitis, 394 So. 2d at 458; see also Quarles, 467 U.S. at 65556 (“[T]he application of the [public safety] exception [to Miranda
warnings] . . . should not . . . depend on post hoc findings at a
suppression hearing concerning the subjective motivation of the
arresting officer.”).
20
Amendment right against self-incrimination.38 Yet
Justice Kennedy’s concurrence in Seibert has muddled
these boundaries by focusing the analysis on an
intent-based test that unduly favors an officer’s
subjective belief.
B.
Courts Routinely Credit an Officer’s
Statements Regarding Subjective Intent
Over Objective Evidence of a Miranda
Violation.
Most courts have held that both objective and
subjective evidence should inform whether an officer
engaged in a deliberate two-step interrogation
strategy.39 However, in weighing objective evidence
against subjective intent, courts have credited officers’
testimony regarding their subjective intent to conform
with Miranda requirements even where the “objective
factors considered by the Court [] tend[ed] to weigh in
favor of a finding of ‘deliberateness.’”40 In Neri v.
Hornbreak, the California Central District admitted
post-warning statements based on the officers’
subjective intent even though the officers transported
38 See, e.g., Miranda, 384 U.S. at 436; Dickerson v. United States,
530 U.S. 428 (2000); Innis, 446 U.S. at 291; Quarles, 467 U.S. at
655-56.
39 See, e.g., United States v. Williams, 681 F.3d 35, 41 (2nd Cir.
2012); Capers, 627 F.3d at 482.
40 Neri v. Hornbreak, 550 F. Supp. 2d. 1143, 1162 (C.D. Cal.
2008); see State v. Fleurie, 968 A.2d 326, 333 (Vt. 2008)
(admitting defendant’s post-warning statements because it was
not “clear that the officers intended to undermine the efficacy of
Miranda warnings” notwithstanding the court’s finding that “the
initial unwarned custodia[n] interrogation was no mere
oversight or good-faith mistake.”).
21
the suspect to the police station, held her for seven
hours and interrogated her for an additional hour and
a half.41 Even more, once the officers secured a prewarning confession, they finally issued the Miranda
warning and, within minutes, asked the suspect to
repeat her pre-warning statements.42
In Ramirez-Marentes v. Ryan, the California district
court refused to find an intentional subversion of
Miranda where officers conducted a three-hour
interrogation
and
“pressed”
defendant
for
incriminating information.43 If courts continue their
overreliance on an officer’s subjective testimony,
lower courts are unlikely to recognize subversions of
Miranda unless an officer explicitly testifies to doing
so.44
III.
THE HYBRID APPLICATION OF THE
SEIBERT PLURALITY AND JUSTICE
KENNEDY’S CONCURRENCE FURTHER
ERODES KEY MIRANDA PROTECTIONS.
Lower courts’ hybrid application of the Seibert
plurality and Justice Kennedy’s concurrence have
worsened already disparate suppression outcomes for
defendants and created an uncertain set of standards
for law enforcement officers.
The incongruous application of the Seibert decisions
has allowed rules governing interrogations and
41 Hornbreak, 550 F. Supp. 2d. at 1161.
42 Id.
43 Ramirez-Marentes v. Ryan, No. SACV-05,551 GHK (CW), 2010
WL 2902524, at *5-6, 20 (C.D. Cal. 2010).
44 Fleurie, 968 A.2d at 333 (citing Seibert, 542 U.S. at 605-06); see
also, Hornbeak, 550 F. Supp. 2d at 1162.
22
criminal convictions to turn on geographical
boundaries. In State v. Martinez, the Arizona Court
of Appeals applied a composite test consisting of the
Seibert plurality and Justice Kennedy’s concurrence
in the case of a murder suspect who alleged that the
police engaged in a deliberate two-step interrogation
technique to sidestep Miranda.45 The Martinez court
considered whether any curative measures were
taken as the sixth factor after the Seibert plurality’s
five-factor objective test.46 Tellingly, the Arizona
appeals court concluded that the Seibert plurality’s
factors favored admission of the suspect’s postwarning statement while the lack of any curative
measures “weigh[ed] against admissibility.”47 The
hybrid test, “taken as a whole,” still compelled the
admission of defendant’s post-warning statements.48
In State v. Martinez, the Arizona Court of Appeals
combined the Seibert plurality factors with the
curative measures mentioned in Justice Kennedy’s
concurrence to determine whether police officers used
a deliberate two-step strategy.49 The court ultimately
concluded that the plurality’s factors favored
admission of the suspect’s post-warning statement,
while the lack of curative measures favored
exclusion.50 Such a hybrid test creates further
confusion and again demonstrates that post-warning
statements can be admissible under the Seibert
45 State v. Martinez, No. 1 CA-CR 13-0107, 2014 WL 5342708, at
*5-*7 (Ariz. App., Oct. 21, 2014).
46 See id.
47 See id. at *7.
48 See id.
49 Martinez, 2014 WL 5342708, at *5-*7.
50 See generally, id.
23
plurality but inadmissible under Justice Kennedy’s
concurrence.51
In the Seventh Circuit, the appellate court issued
three opinions across four years to determine the
admissibility of a suspected bank robber’s postwarning statements.52 In United States v. Stewart,
the district court read the Seibert plurality’s
balancing test into Justice Kennedy’s allowance for
“curative steps.”53 The Seventh Circuit then thrice
considered the application of the Seibert plurality and
Justice Kennedy’s concurrence before ultimately
admitting defendant’s post-warning statements.54
Though the Stewart court applied a hybrid approach,
the evident confusion within the Seventh Circuit only
worsened in United States v. Heron when the court
“conclude[d] that the Marks rule is not applicable to
Seibert.”55
The Seventh Circuit is not alone in issuing
persistently unclear guidance.56 The Third, Fourth,
51 See, e.g., Lewis, 833 F.3d at 1008.
52 See United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004)
(finding district court evidence insufficient to establish whether
officers deliberately employed a two-step strategy to circumvent
Miranda) (Stewart I); United States v. Stewart, 191 F. App’x 495
(7th Cir. 2006) (directing the District Court to make specific
findings into officer intent) (Stewart II); Stewart, 536 F.3d at 714
(issuing final opinion admitting defendant’s post-warning
statements) (Stewart III).
53 See Stewart I, at 1090.
54 See Stewart I; Stewart II; Stewart III.
55 See U.S. v. Heron, 564 F.3d 779, 884 (7th Cir. 2009).
56 See Edwards, 923 A.2d at 848 n.10 (“[t]he Seventh Circuit
seems to favor applying a hybrid of the two tests”); see also Locke
Houston, Miranda-in-the-Middle: Why Justice Kennedy’s
Subjective Intent of the Officer Test in Missouri v. Seibert is
24
Fifth, and Eighth Circuit courts apply varying
iterations of Justice Kennedy’s concurring opinion.57
Decisions from the Fifth Circuit in particular vacillate
between a strict and hybrid application of Justice
Kennedy’s concurrence with the Seibert plurality
opinion.58 In United States v. Courtney, the Fifth
Circuit considered Justice Kennedy’s concurrence
controlling as the holding of the Seibert opinion and
applied it to find that the passage of time between the
first and second interrogations constituted a “curative
measure” sufficient to allay Miranda concerns.59
Conversely, in United States v. Nuñez, the Fifth
Circuit found no evidence of a deliberate attempt to
circumvent Miranda and instead focused upon the
voluntariness of each interrogation stage.60
Differences in suppression outcomes carry steep
consequences for defendants and law enforcement
across the nation. If the volume of cases analyzing the
Seibert plurality and concurrence is any indication,
the
two-step
interrogation
is
a
frequent
Binding and Good Public Policy, 82 MISSISSIPPI LAW
JOURNAL 1129, 1146-50 (2013).
57See Houston, supra note 56, at 1146-50.
58 See id. at 1146-47 (“as the circuit stands today, it seems to be
leaning more towards an application of Justice Kennedy's
subjective intent of the officer test, with concern for Miranda
efficacy as an afterthought.”).
59 See United States v. Courtney, 463 F.3d 333, 338-39 (5th Cir.
2006) (finding that time elapsed between questioning proved to
be a “curative measure” where officers interviewed the suspect
three times over the course of a calendar year and that a
“reasonable person” would ultimately consider the Miranda
warnings sufficient as provided).
60 See United States v. Nuñez, 478 F.3d 663, 668-69 (5th Cir.
2007).
25
phenomenon.61 The discord between circuit courts
and disparate outcomes among even the same circuits
underscores the sheer unpredictability of a
fundamental constitutional right: the Fifth
Amendment protection against self-incrimination.
Amici urge this Court to issue clear guidance on the
application of the Seibert decisions and to discourage
courts from further chipping away at a fundamental
constitutional safeguard.
IV.
IN DECIDING WHETHER TO GRANT
CERTIORARI, THIS COURT SHOULD
CONSIDER THE ALARMINGLY HIGH
PERCENTAGE
OF
PEOPLE,
PARTICULARLY YOUNG ADULTS, WHO
ARE SUSCEPTIBLE TO COERCIVE
INTERROGATION TECHNIQUES AND
FALSELY CONFESS.
Because of the disparate applications of Seibert by
the lower courts, coercive interrogation strategies,
like the intentional question-first, warn-later
technique, continue to erode Miranda protections at a
time when, according to research and recent scientific
findings, those protections should be strengthened to
counteract such coercive tactics.62 Though precise
percentages are unknown, studies show that 20% to
25% of convicted individuals, later exonerated, had
falsely confessed to police.63 These outcomes occur
because the suspect is exposed to highly suggestive
61 Pet. App. A at 35-37.
See, e.g., Saul M. Kassin, False Confessions: Causes,
Consequences, and Implications for Reform, 1 SAGE J. 112 (2014).
63 See id.
62
26
interrogation tactics and “acquiesces [in order to]
escape [from] a stressful situation.64”
A.
Modern Police Interrogations Result in
High Rates of False Confessions.
Even absent extreme police behavior, innocent
people confess to crimes they did not commit.65
Modern studies recognize that confessions may be
coerced, where “custodial police interrogation, by its
very nature, isolates and pressures the individual.”66
The manner in which an interrogation is conducted
may heighten the likelihood of a false confession.
Interrogation tactics championed by the Reid
Technique, a leading interrogation method employed
by law enforcement throughout the United States, are
especially problematic.67
Two commonly used
elements of the Reid Technique are “minimization,”
the
attempted
lowering
of
stakes,
and
“maximization,” an increased focus on the suspect’s
fear and guilt.68 Minimization includes situations
where a police officer strongly asserts accusations of
guilt, stating that such guilt can already be
64 Saul M. Kassin, et al., Police-Induced Confessions: Risk
Factors and Recommendations, 34 J. LAW & HUMAN BEHAVIOR
7, 14 (2010).
65 See, e.g., Steven A. Drizin & Richard A. Leo, The Problem of
False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891,
906-907 (2004).
66 Corley v. United States, 556 U.S. 303, 305 (2009) (citing
Dickerson v. United States, 530 U.S. 428, 435 (2000)).
67 Kassin, et al., supra note 64, at 12-13; see also Brandon
Garrett, Contaminated Confessions Revisited, 101 VA. L. REV.
395, 428-29 n.16 (2014).
68 See Kassin, supra note 64, at 12.
27
established through evidence obtained, and the
refusal to accept a statement of denial.69
Maximization, in contrast, is intended to lead the
suspect to believe establishing guilt is inevitable,
often through creating a situation in which the
suspect feels hopeless.70 Trickery and deception are
both examples of maximization as well as
cornerstones of many police manuals, and long
deemed legal by the United States Supreme Court and
various state court systems.71 Tellingly, in 2017, one
of the largest consulting groups responsible for
training U.S. law enforcement, Wicklander-Zulawski
& Associates, ceased all instruction of the Reid
Technique in recognition of its disastrous effects.72
The unexpected number of false confessions since the
early 1990s also led to the implementation of
mandatory videotaped interrogations in twenty-five
states.73
What is worse, false confessions are likely to occur
primarily in “more serious cases, especially
69 Id.
70 Id.
Id.; see also Frazier v. Cupp, 394 U.S. 731, 738-39 (1969);
Commonwealth v. Selby, 420 Mass. 656, 663-64 (Mass. 2004)
(finding that although trickery and deception are disfavored,
they do not necessarily lead to involuntary confessions.).
72 See Leading Police Consulting Group Will No Longer Teach the
Reid Technique, Innocence Project (2017), available at
https://innocenceproject.org/police-consultants-drop-reidtechnique/.
73 See David Coffey, Why do people confess to crimes they didn’t
commit?,
Livescience
(2020),
available
at
https://www.livescience.com/why-people-fasely-confess-tocrimes.html.
71
28
homicides.”74 In a study of 125 DNA exonerations in
cases with false confessions, the “overwhelming
majority,” or 81%, occurred in murder cases.75
B.
Teenagers Falsely Confess at Higher
Rates Due to Their Age and Susceptibility.
1.
Age
Adolescents are among the most vulnerable
populations with respect to false confessions.76
Research has shown that 49% of false confessions
exonerated by DNA evidence were from people under
21 years of age.77 According to the National Registry
of Exonerations, 36% of individuals exonerated for
wrongful convictions involving false confessions were
18 years or younger at the time of their alleged
crime.78 The percentage is 9.88% for those above the
age of 19.79
Teenagers are also more likely than adults to waive
their Miranda rights.80 This may result from the
74 Brandon L. Garrett,
The Substance of False Confessions, 62
STAN. L. REV. 1051, 1065 (2010).
75 Id. at 1066.
76 The National Registry of Exonerations, available at
https://www.law.umich.edu/special/exoneration/Pages/about.asp
x.
77 Coffey, supra note 73.
78 The National Registry of Exonerations, supra note 76.
79 Id.
80 Jason Mandelbaum and Angela Crossman, No illusions:
Developmental considerations in adolescent false confessions,
CYF News (2014) (Citing Redlich, Silverman, Chen, & Steiner
(2004), available at
29
likelihood that adolescents will misunderstand the
warning.81 In one study, of the 66 DNA exonerations
involving false confessions, 23 were juveniles and at
least 22 were mentally impaired or mentally ill.82 All
66 exonerees had waived their Miranda rights.83
Courts have also questioned a teenager’s ability to
invoke their constitutional rights, particularly
regarding their ability to waive their rights
voluntarily, knowingly, and intelligently.84
2.
Susceptibility
Unsurprisingly, adolescents are more likely to base
their decisions on immediate, rather than long-term,
consequences.85 This suggests that teenagers will
likely make decisions different from those they would
have made as adults.86 Experts attribute juvenile
false confessions to the use of police interrogation
tactics intended for adults.87 Specifically, Bowman
https://www.apa.org/pi/families/resources/newsletter/2014/12/ad
olescent-false-confessions.).
81 Viljoen, J. L., Klaver, J., & Roesch, R., Legal Decisions of
Preadolescent and Adolescent Defendants: Predictors of
Confessions, Pleas, Communication with Attorneys, and
Appeals, Law and Human Behavior, 29(3), 253, 254 (2005).
82 Garrett, supra note 67 at 400 n.16.
83 Id. at 402.
84 Oberlander, L. B., & Goldstein, N. E., A review and update on
the practice of evaluating Miranda comprehension, 19 (4)
BEHAVIORAL SCIENCES & THE LAW, 453-461 (2001).
85See generally, Grisso, T., Steinberg, L., Woolard, J. et
al., Juveniles' Competence to Stand Trial: A Comparison of
Adolescents' and Adults' Capacities as Trial Defendants, 27 LAW
HUMAN BEHAVIOR 333-363 (2003).
86 Id.
87 Why are Youth Susceptible to False Confessions?, Innocence
Project (2015) (Listing the tactics as coercion, false promises of
leniency, and deception about evidence.), available at
30
found that “[t]he interrogation process is inherently
coercive. It is psychologically difficult [] even for
strong,
intelligent
people
to
withstand.”88
Particularly for teenagers, when such strategies are
“impose[d upon] an individual who is young, who is
intellectually vulnerable, the capacity of the person to
withstand the process is easily overcome.”89 Take the
case of Martin Tankleff, a 17-year-old suspect who
was wrongfully convicted of murdering his parents.90
Tankleff affirmed his innocence repeatedly during
multiple hours of a custodial interrogation until the
questioning officer informed him of purported
testamentary evidence from Tankleff’s father,
solicited while his father was seriously injured but
before his passing, where he alleged that Tankleff
attacked his mother.91 Influenced by his father’s
apparent testimony, Tankleff ultimately confessed to
the crime.92
C.
False Confessions Carry a Heavy Biasing
Effect.
A false confession, even once retracted or proven to
result from police coercion, can alter the entire course
of an investigation and trial. In the investigation
https://innocenceproject.org/why-are-youth-susceptible-to-falseconfessions/.
88 Id.
89 Id.
90 Maurice Possley, Martin Tankleff, The National Registry of
Exonerations (2020), available at
https://www.law.umich.edu/special/exoneration/Pages/casedetai
l.aspx?caseid=3675.
91 Id.
92 See id.
31
phase, “[o]nce a suspect confesses, police often close
the investigation, deem the case solved, and overlook
exculpatory information – even if the confession is
internally inconsistent, contradicted by external
evidence, or the product of coercive interrogation.”93
At the trial stage, jurors give disproportionate weight
to confession evidence and fail to adequately discount
retracted false confessions or those that have been
shown to result from coercion.94 False confession
evidence is even powerful enough to overcome highly
probative evidence, including exculpatory DNA
results.95
CONCLUSION
Amici respectfully request that the Petition for
Certiorari be granted.
93 Saul M. Kassin, Why Confessions Trump Innocence, 67 AM.
PSYCHOL. 431, 437 (2012) (emphasis added).
94 See id. at 433-34; see also Steven A. Drizin & Richard A. Leo,
The Problem of False Confessions in the Post-DNA World, 82 N.C.
L. REV. 891, 961-62 (2004) (study of 125 proven false confession
exonerations from the post-Miranda era).
95 Saul M. Kassin, et al., Police-Induced Confessions: Risk
Factors and Recommendations, 34 J. LAW & HUMAN BEHAVIOR 4,
23 (2010).
32
Respectfully submitted,
James C. Dugan
Counsel of Record
Alina Jamil Mian
Michelle Mlacker
WILLKIE FARR & GALLAGHER LLP
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
Professor Colin Miller
1525 Senate Street, Room 316
Columbia, SC 29208
(803) 777-3433
mille933@law.sc.edu
October 26, 2021
Counsel for Amici
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.