Respondents Brief — Solem v. Stumes

Office - Supreme Court, U.S

FILED

NO. 81-2149 OCT 12 196s

IN THE

Supreme Court of the Hnited States

OCTOBER TERM. 1983

HERMAN SOLEM, Warden

South Dakota State Penitentiary,

Petitioner,

NORMAN STUMES.

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF RESPONDENT

TIMOTHY J. McGREEVY

Dana, Golden. Moore & Rasmussen

131 North Main Avenue

Sioux Falls, SD 57102

Telephone: (605) 336-1730

Court-appointed Counsel for

Respondent

CLB PUBLISHERS & LITHOGRAPHERS INC © (301) 933-5220

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. .............ccccccccccss (ii)

CONSTITUTIONAL PROVISIONS .................... |

STATEMENT OF THE CASE... ..........ccccccccccess 2

SUMMARY OF ARGUMENT ......................... 5

Ts cin hcveeens4000cesx000se cual 6

lL THE ALLEGED - INCRIMINATING

STATEMENTS AT ISSUE WERE OB-

TAINED IN VIOLATION OF THE PRIN-

CIPLE ANNOUNCED IN MI/RANDA V.

SEED oc6b dcedsescvicecceesccueeeacian 6

Il. THERE WAS NO VALID WAIVER OF

THE RIGHT TO COUNSEL, UNDER

EITHER EDWARDS V. ARIZONA OR

I Tee 10

Ill. EDWARDS V ARIZONA SHOULD BE

So ee 14

ls c0ccccecucesesccccecsce steel 17

(iw

TABLE OF AUTHORITIES

Cases: Page

Brewer v. Williams,

430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)....8

Brown v. Louisiana,

447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d

eal tees eek hens oad eiin 14,15

Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378

ie ns ine een ecietetesneneened Passim

Johnson v. New Jersey,

384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966)...14

Linkletter v. Walker,

381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)...14

Michigan v. Mosley,

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975)...... 6

Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

hn ¢cnepbidnbeeses + cage consbadseueanen Passim

Nardone vy. United States,

308 U.S. 338, 60 S.Ct. 266, 84 L.Ed.2d 307 (1939)..... 4

Oregon v. Bradshaw,

ED «+06 svedscocecseebesuanasneneas 11

People v. Paintman,

315 N.W.2d 418 (Mich. 1982), Cert. den.

od ddandntceeve6ecsncscéusaneane 11-13

Westover v. United States,

384 U.S. 436, 836 S.Ct. 1602, 16 L.Ed.2d

TD did diexcadage sceeséasebabeneecsneneen 9

Wong Sun v. United States,

371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)...... 8

CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the Constitution of the United

States provides as follows:

No person shall be held to answer for a capital or other-

wise infamous crime, unless on a presentment or indict-

ment of a grand jury, except in cases arising in the land or

naval forces, or in the militia when in actual service, in

time of war or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled, in any criminal case,

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use without just

compensation.

The Sixth Amendment to the Constitution of the United

States provides as follows:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial by an impartial jury of

the state and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him,; to have compulsory process for

obtaining witnesses in his favor; and to have the assis-

tance of counsel for his defense.

The Fourteenth Amendment to the Constitution of the

United States provides in Section | as follows:

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States, and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States, nor shall any state deprive any person of life,

liberty or property, without due process of law, nor deny

,

to any person within its jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE

In this statement of the case, respondent will attempt to

limit himself to points which are overlooked or misstated in

the brief of the petitioner.

There are four separate transcripts that contain the tes-

timony in this matter. The state pretrial motions, and the state

trial are in the transcript referred to as ‘Trial Transcript.”

The testimony from the state preliminary hearing is con-

tained in a transcript referred to as “Preliminary Hearing

Transcript." Two evidentiary hearings were held in the

United States District Court, and they are referred to as

“District Court Evidentiary Hearing Transcript #1 or

#2.”

By the time the detectives from Sioux Falls traveled to

Green Bay, at the end of September, 1973, to interrogate and

transport respondent, he had become the prime suspect in the

death of Hoff. (Trial Transcript 108-109) In fact, it does not

appear that the detectives in the interrogations so much as

asked respondent a single question relating to any alleged

crime other than the Hoff death.

The record indicates that the interrogation in this case took

place in three separate phases. The first lt» g.n at about 9:45

a.m. on October |, 1973. This interrogation took place in the

Green Bay Police Department, to which respondent was

transported in the company of several law officers, from the

jail where he had been lodged. (Preliminary Hearing

Transcript 23, 46) This interrogation was conducted by

Detective Green, and began with Green giving respondent

his Miranda rights. During that interrogation, respondent

made no incriminating staicments. Green, during this ques-

tioning, asked respondent **. . . if he was responsible for the

death of Joyce Hoff, . . ."’ The respondent replied **. . . he'd

rather not answer that until he talked to Steve.” (Preliminary

Hearing Transcript 49-50) In addition, Green told respon-

dent that “X*’ number of people had taken and passed a

polygraph test concerning the matter and asked if he'd care to

submit to such an exam. Respondent indicated he'd like to

talk to Steve before answering that question. (Preliminary

Hearing Transcript 37)

The “Steve” referred to was the Sioux Falls attorney

retained by respondent's mother to represent him. The detec-

tives in Green Bay well knew that the respondent was rep-

resented by counsel ii connection with the homicide at the

time of the interrogation in Green Bay and during the car trip

to Sioux Falls. (Preliminary Hearing Transcript 28-30)

This first phase of the interrogation lasted about one hour

forty-five minutes, ending at about 11:45 a.m. (Preliminary

Hearing Transcript 48)

The second interrogation began at about 4:30 p.m., in the

sheriff's office in Green Bay. This interrogation was conduc-

ted by Detectives Green and Skadsen. No Miranda rights

were given to respondent prior to or during this second

interrogation. (District Court Evidentiary Hearing Tran-

script #1 76-79)

During this second session, the prime questioner was De-

tective Skadsen. (Preliminary Hearing Transcript 52) Skadsen

apparently went over the entire matter in his questioning.

(Preliminary Hearing Transcript 38) Green asked only one

question - was the death of Joyce Hoff intentional or acciden-

tal. (Preliminary Hearing Transcript 37-39) According to

Green, to that question respondent replied, “accidental,”

and “I don’t want to talk about it anymore until I talk to

4

Steve.” (Preliminary Hearing Transcript 39) This was the

first statement allegedly made by respondent which impli-

cated him in the death of Hoff. (District Court Evidentiary

Hearing Transcript #1 80)

The next morning, October 2, 1973, the third interrogation

session began at about 9:00 a.m. The detective and a deputy

picked respondent up to take him to Sioux Falls. Apparently

respondent had waived extradition under Wisconsin law.

(State Court Record, Page 711i, Affidavit of Skadsen)

As soon as the group were all in the car for the drive to

Sioux Falls, a trip of at least 500 miles, respondent was ad-

vised of his Miranda rights. Questioning began almost im-

mediately. (District Court Evidentiary Transcript #1 83-84)

The purpose of the questioning was to elicit further in-

criminating statements from respondent, and began with a

review of the alleged incriminating statement of the prior day.

During the course of the all-day drive, the conversation drifted

to different subjects, so that the direct questions regarding the

Hoff death were intermittent. (District Court Evidentiary

Hearing Transcript #1 85) The afternoon of October 2,

nearing Sioux Falls, it is alleged that the respondent said

“taking a human life is so useless.’ (Trial Transcript 161-

162) Green then told respondent he’d feel better if he got if off

his chest. (Trial Transcript 477, 522) The detectives then

allegedly questioned respondent about the death and al-

legedly respondent provided incriminating statements which

were admitted in evidence at trial. (Trial Transcript 43-45,

83-84, 86-87, 121, 123, 481-482, 456) It was after allegedly

obtaining these statements that the detectives for the first

time acknowledged to respondent that they knew he had an

attorney waiting back in Sioux Falls, and that the attorney

wouldn’t want him to give a written statement. (Prelim aary

Hearing Transcript 43-45, 84)

5

SUMMARY OF ARGUMENT

The decision of the Eighth Circuit Court of Appeals in

connection with this matter may be affirmed without reliance

on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378 (1981). A proper application of Miranda vy.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), by itself fully justifies the result reached in the

Eighth Circuit.

If a decision in this matter favorable to respondent depends

upon the application of Edwards v. Arizona, supra, respon-

dent believes that it is not necessary to apply traditional rules

governing retroactivity, as Edwards did not in respondent's

view establish a new constitutional principle of criminal

procedure.

If one assumes that the retroactivity of Edwards must be

addressed, respondent submits that because Edwards in

essence only provides a means to insure that rights guaran-

teed by Miranda are in practice honored, and because the

right to counsel is so basic to our system of justice, that

Edwards should be given retroactive application in this case.

Respondent further argues that whether Edwards is

deemed applicable in this matter or not, respondent believes

that under no applicable standard has the petitioner demon-

strated appropriately that there was a valid waiver of the right

to counsel in this case.

6

ARGUMENT

I.

THE ALLEGED INCRIMINATING STATE-

MENTS AT ISSUE WERE OBTAINED IN

VIOLATION OF THE PRINCIPLE AN-

NOUNCED IN MIRANDA V. ARIZONA.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966), this Court established certain prin-

ciples regarding police interrogation of criminal suspects. In

that case, the Court held, inter alia, that a criminal suspect

must be advised of his right under the Fifth and Fourteenth

Amendments to have counsel present during custodial inter-

rogation and that:

If the individual states that he wants an attorney, the

interrogation must cease until an attorney is present. At

that time, the individual must have an opportunity to

confer with the attorney and to have him present during

any subsequent questioning.

Miranda, supra, at 474.

In Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46

L.Ed.2d 313 (1975), the Court addressed the matter of the

applicability of Miranda to successive interrogations of a

suspect. Mos/ey dealt specifically with a suspect’s invocation

of his right to remain silent, -ather than the right to counsel.

The Court in Mos/ey made it clear that with respect to a

request for counsel, the procedure is detailed in Miranda,

supra, at 101 (Footnote 7). The Mos/ey case itself is none-

theless instructive. In that case the suspect was questioned

about a robbery, after being given Miranda rights. The sus-

pect indicated he wished to remain silent. Later that same

_

/

day, after the suspect had been lodged in jail, another detec-

tive questioned the suspect about an unrelated homicide.

This Court found Mosley’s confession to be admissible,

because (1) the second interrogation by itself complied fully

with Miranda; (2) Mosley’s right to cut off questioning was

fully honored in the first interrogation; (3) full Miranda wamings

were given before the second interrogation; and (4) the

second interrogation related to a distinct offense.

In the case now before this court, Miranda rights were

given before the first phase of interrogation. During that

interrogation the right to counsel was invoked, and question-

ing ended. No incriminating statements were made. Some

four to five hours later, during which time respondent

remained in jail, the questioning resumed. Significantly, no

Miranda rights were given before this second phase of

interrogation. The second phase involved two detectives, one

of whom had conducted the earlier questioning. It is an

understatement to say that the detectives failed “to scru-

pulously honor” the request for counsel. The detectives just

plain ignored the request, conveying most certainly to the sus-

pect the message that his request for counsel had fallen on

deaf ears.

Further, the request for counsel at the end of the first

interrogation can be read as a two-fold request, involving also

the right to remain silent. The distinctions between this case

and Mosiey, on the facts, are obvious. In this case, the second

part of the interrogation concerned the same alleged crime; it

was conducted in part by the same detective; it was not

accompanied by fresh Miranda rights: the second interroga-

Miranda case. At the end of this second, unlawful interroga-

tion, the first incriminating statement was allegedly obtained.

The right to counsel was then invoked again, and questioning

8

stopped for a time. The District Court in its Memorandum

Opinion found that this second phase violated Miranda, but

held that the error was harmless. (Joint Appendix 64-65).

The questioning resumed at 9:00 a.m. the next morning.

By then, the detectives had the “foot in the door” in that re-

spondent had allegedly incriminated himself in the death dur-

ing the second phase of interrogation the prior day. It can be

surmised that by the time the car trip to Sioux Falls began, the

detectives may well have seen that ultimate success in the

interrogation was near at hand. They, by then, had the sus-

pect allegedly admitting some involvement in the death, and

an Opportunity to interrogate the suspect off and on for the

duration of a 500 mile car trip in an exceedingly coercive

atmosphere.

The third phase of the interrogation, that which occurred in

the car, may be compared to that which occurred in Brewer v.

Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424

(1977). In Brewer, the authorities engaged in a “wide-

ranging conversation”’ during a long car trip, which resulted

in a confession being obtained. Brewer, supra, at 392.

The Eighth Circuit Court of Appeals in this matter interes-

tingly held that some comments attributed to respondent after

completion of the car trip from Green Bay were inadmissible

based on the ‘’fruit of the poisonous tree” doctrine. See Wong

Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d

441 (1963). The same analysis can be applied as between the

alleged incriminating statement made during the second

interrogation, and the “full confession”’ alleged to have been

obtained in the third, and last interrogation. But for the

statement would in all likelihood have never been made, and

in turn making the results alleged to have been obtained in the

In Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266,

84 L.Ed.2d 307 (1939), the Court held that the government

may not make derivative use of evidence gained illegally.

Seen in the context of this case, it is clear that the “full confes-

sion” alleged to have been obtained in the third interrogation

owes its genesis to and was derived from the alleged

incriminatins, statement obtained in the unlawful second

interrogation. On this basis alone, the Eight Circuit should be

affirmed, though admittedly on a basis different than the one

expressed by that Court.

The situation in this case is somewhat similar to that which

existed in Westover v. United States, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966). Because the second part of the

interrogation in this case was not preceded by Miranda

warnings, all that followed was tainted. When Miranda

rights were given before the third part of the interrogation,

from respondent’s point of view that was like closing the barn

door after the cows have gotten out. By the time warnings

were given before the third part of the interrogation, the detec-

tives felt they had their case made, as an incriminating state-

ment had already been elicited.

Ata previous point ia this brief, a quotation from Miranda

was set forth. Here, that quotation is restated, with

parenthetical comments relating to this case interspersed.

The court in Miranda, supra, at 474, held:

If the individual states that he wants an attorney [which

respondent did on at least three occasions], the

interrogation must cease until an attorney is present.

[The interrogation was not stopped when counsel was

requested; instead, the interrogation was interrupted

after the first request, only to be resumed without so

much as a fresh set of Miranda rights, and an attorney

was not present]. At that time, the individual must have

an opportunity to confer with the attorney and to have

10

him present during any subsequent questioning. |Ob-

viously this was not done, as no attorney was made

available, and yet interrogation continued].

THERE WAS NO VALID WAIVER OF THE

RIGHT TO COUNSEL, UNDER EITHER

EDWARDS V. ARIZONA OR PRIOR AU-

THORITY.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68

L.Ed.2d 378, the court ruled inadmissible a confession

obtained from a suspect at a second interrogation following a

request for counsel. In Edwards it is significant that the

second and pivotal interrogation was preceded by a set of

fresh Miranda warnings. Edwards at 479.

Edwards begins by reviewing Miranda and some of its

progeny. Perhaps the clearest statement relating to the princi-

ple at stake can be found in Edwards, supra, at 485.

Miranda itself indicated that the assertion of the right to

counsel was a significant event and that once exercised

by the accused, “the interrogation must cease until an

attorney is present.” (Citations omitted) Our later cases

have not abandoned that view. In Michigan v. Mosley,

423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321 (1975), the

Court noted that Miranda had distinguished between

the procedural safeguards triggered by a request to

remain silent and a request for an attorney and had

required that interrogations cease until an attorney was

present only if the individual stated that he wanted coun-

sel. (Citations omitted) In Fare vs. Michael C., supra,

at 719, 61 L.Ed.2d 197, 99 S.Ct. 2560, the Court

referred to Miranda's “rigid rule that an accused’s

request for an attorney is per se an invocation of his Fifth

Amendment rights, requiring that all interrogation

cease.” And just last term, in a case where a suspect in

custody had invoked his Miranda right to counsel, the

Court again referred to the “undisputed right”’ under

Miranda to remain silent and to be free of interrogation

“until he had consulted with a lawyer.”’ Rhode Island v.

Enis, 446 U.S. 291, 298, 64 L.Ed.2d 297, 100 S.Ct.

1682 (1980). We reconfirm these views and, to lend

them substance, emphasize that it is inconsistent with

Miranda and its progeny for the authorities, at their

instance, to reinterrogate an accused in custody if he has

clearly asserted his right to counsel.

Edwards did not establish a new constitutional rule of

criminal procedure, such as Miranda did. Instead, Edwards

simply is an example of the application of Miranda to a cer-

tain discrete fact pattern. If Edwards created a per se rule of

any sort, it is only that a valid waiver of a request for counsel

will not be presumed merely because incriminating state-

ments are elicited at a second interrogation even though pre-

ceded by fresh Miranda rights. It appears in Oregon v.

Bradshaw, 103 S.Ct. 2830 (1983), that a majority of this

Court viewed Edwards as having created a type of per se rule.

However, we believe that it is so clearly built upon the hold-

ing of Miranda, supra, that it is not the sort of rule which

should be given anything other than full retroactive applica-

tion (See part III of this argument).

In People v. Paintman, 315 N.W.2d 418 (Mich. 1982),

Cert. den. 73 L.Ed.2d 1292, the Michigan Supreme Court

had occasion to consider the implications of Edwards v.

Arizona, supra. In that case the Michigan Supreme Court

expressed the view that Edwards did not announce a new

12

—

the ““knowing and intelligent relinquishment or abandonment

of a known right or privilege,” see Edwards, supra at 482, it

is clear that the District Court did not engage in a discrete

inquiry in that regard. (Joint Appendix 71-72) Furthermore,

constitutional standard in these words:

The Edwards Court took pains to establish that it was

not announcing new law, but only clarifying further the

dictates of existing law.

Because the use of Edwards’ confession against him

at his trial violated his rights under the Fifth and Four-

teenth Amendments as construed in Miranda vy.

Arizona, supra, we reverse the judgment * * *.”

(Emphasis added.) Edwards, 451 U.S. at 480, 101

S.Ct. at 1882.

The Court later recited a parade of cases that supported

the proposition of Miranda that “the right to counsel

was a significant event and that once exercised by the

accused, ‘the interrogation must cease until an attorney

is present’ ”.

The Court concluded the discussion by noting that

“|wle reconfirm these views and to lend them substance,

emphasize that it is inconsistent with Miranda and its

progeny for the authorities, at their instance, to rein-

terrogate an accused in custody if he has clearly asserted

his right to counsel”. Id., 485, 101 S.Ct. at 1885.

People v. Paintman, supra, at 422.

It seems clear that the pattern of interrogation in this case

was wholly at odds with the plain teaching of Miranda, and

that no valid waiver of the right to counsel occurred here. It

can at least be said in Edwards that fresh Miranda rights

were given; in this case, no such admonitions were given

before the second phase of interrogation, at which the first

incriminating statement was allegedly made.

The District Court in this matter misapprehended the stan-

13

dard for considering whether an individual has validly waived

the right to counsel. The District Court in its opinion held that

the statements given “were voluntary and not the product of

coercion.”” While the District Court cited cases establishing

to the extent that the District Court reviewed the totality of

the circumstances, many of its factual conclusions seem at

best “‘strained.”’ (Joint Appendix 68-71) Even the Eight Cir-

cuit took pains to respectfully disagree with the District Court

on the facts.

In the view of the respondent one need not reach the ques-

tion of whether Edwards should be applied retroactively.

Edwards did not create a new constitutional rule of criminal

procedure. Further, one need not rely on Edwards to uphold

the decision of the Eighth Circuit in the court below. The

important distinction between Edwards and this case is that

here the second interrogation was not preceded by fresh

Miranda warnings.

The following quotation from People v. Paintman, supra,

at 422, eloquently states the situation:

Of what significance is invocation of a cherished con-

stitutional right if it is ignored by the hearer and, in fact,

only seems to exacerbate the defendant’s plight? As the

time gap increases between the embracing of the right

and its fulfillment, the certainty of its existence must

surely dim.

Miranda becomes meaningless rhetoric in the face of

a request for counsel that matures only in form but

not in substance.

“Whatever the testimony of the authorities as to

waiver of rights by an accused, the fact of lengthy

ronant ‘cado i Auotfor any

statement is made is strong evidence that the accused did

not validly waive his rights.” Miranda, 384 U.S. at 476,

86 S.Ct. at 1629.

14

IIL.

EDWARDS V. ARIZONA SHOULD BE AP-

PLIED IN THIS CASE.

The point has already been made in this brief that Miranda,

supra, itself established the correct police response to a

request for counsel. That response should be the cessation of

all interrogation. Miranda, supra, at 474. That response

should preclude further interrogation until counsel has been

made available to the suspect.

We respectfully submit that there is no sensible argument

that can be made to support the contention that the police

interrogation in this case was consistent with Miranda, supra. It

seems so obvious that we hestiate to put to paper the observa-

tion that the police in this case appear to have flagrantly

ignored the crystal clear teachings of Miranda, supra.

In Brown v. Louisiana, 447 U.S. 323 (1980), the Court

indicated that three factors would be considered in deciding

whether to give retroactive application to a new con-

stitutional doctrine. The factors are: ““(a) the purpose to be

served by the new standards, (b) the extent of the reliance by

law enforcement authorities on the old standards, and (c) the

effect on the administration of justice of a retroactive applica-

tion of the new standards.” Brown, supra at 328.

It seems clear that Edwards v. Arizona, supra. directly

affects the right counsel. Furthermore, the right to counsel

may well be crucial to an accused ultimately receiving a fair

trial. See, e.g. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct.

1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384

U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). To

paraphrase from Brown, supra, the right to counsel “is a

fundamental right. essential for preventing miscarriages of

15

justice and for assuring that fair trials are provided for all

defendants.” Brown, supra, at 330.

Respondent believes the state in this matter cannot

rationally argue that a consideration of the second factor

weighs in favor of the state’s position. The same can be said of

the third factor. To argue that the retroactive application of

Edwards, supra, either in general or on same basis in this

case, would adversely affect the administration of justice in a

substantial way is to acknowledge widespread police conduct

at odds with Miranda. To view the matter another way, had

the detectives in this case followed the “old standard,”

Miranda, and refrained from a second interrogation without

benefit of advice of Miranda rights, and a second and third

interrogation without honoring a plea for counsel, in all

likelihood we would not be in court today. Not only did the

detectives not rely on the “old standard,”’ they ignored ‘t, just

as they ignored the repeated request by respondent thax he be

free from interrogation until he had consulted with his

retained attorney.

The discussion previously in this brief regarding People v.

Paintman, supra, is applicable also at this point, as in Paint-

man the Michigan Court found it unnecessary to apply

traditional retroactivity principles to Edwards.

Respondent believes that the facts in this case mandate the

application of Edwards, supra. To do otherwise is to give a

stamp of approval to conduct such as occurred in this

interrogation.

The respondent in this case did not initiate the second

interrogation session. There is no serious dispute about that.

The respondent did not initiate the third interrogation in the

police car. There is no serious dispute about that. The

petitioner does claim that when respondent is alleged to have

said, “taking a human life is so useless,” he initiated further

16

conversation with the police. The Eighth Circuit did not

agree, viewing the entire day in the car as a single session. We

submit such was a correct decision.

It is therefore plain that under Edwards, supra, the alleged

incriminating statements must be held to be inadmissible.

Viewed in one way, it can be argued that the application of

Edwards to this case demonstrates the possible futility of

focusing on the “‘initiation’’ question, at all. Here we had a

situation in which the dtectives by the nature of the situation

were going to spend several uninterrupted hours with the sus-

pect. Unless no one is to speak at all, it is obvious that “con-

versation”’ will occur which seen in isolation may be said to

have been “initiated” by one party or the other. But that

analysis does not seem very helpful. It may be more useful to

see which party initiated the overall setting in which the

alleged conversations occurred. In this case there is no doubt

but that each session was sought and initiated by the police,

not by the respondent. This was not a situation in which a sus-

pect sought out the detectives in order to make a statement.

Instead, it is a situation in which the detectives doggedly pur-

sued a course of interrogation over two days and many hours,

having turned a deaf ear to a specific request for counsel. No

valid waiver occured in this case.

17

CONCLUSION

The second phase of the interrogation violated Miranda

for at least two reasons: respondent’s request to consult his

attorney was not honored, and no fresh Miranda warnings

were given. The District court so held. It was this interroga-

tion which allegedly resulted in the first incriminating

statement.

The third phase of interrogation was also unlawful because

of non-compliance with respondent’s request to consult his

retained attorney, and because this phase was built upon and

depended for its foundation on the incriminating statement

allegedly obtained in the unlawful second interrogation.

Respondent believes that this court can affirm the court

below without deciding if Edwards, supra, is to be applied

retroactively, on the basis of Miranda, and those cases which

followed it. If, however, the application of Edwards is

necessary in order to affirm the Eighth Circuit, respondent

believes Edwards does not create a new constitutional rule of

criminal procedure, and therefore the question of retroac-

tivity need not be addressed.

Should the court hold that the retroactivity question must

be addressed, respondent believes retroactive application of

Edwards is called for in this case because the police conduct

was so plain!y and substantially at variance with the clear dic-

tates of Miranda itself. The detectives paid only “lip-

service” to the rights guaranteed by the holding of Miranda.

They said one thing (you have the right to consult your attor-

ney), and did another.

The respondent respectfully requests that the decision

below be affirmed, and that the District Court be directed to

forthwith order the release of respondent. In the alternative,

should the court hold that the Eighth Circuit cannot be

affirmed, respondent respectfully requests that the matter be

remanded for further proceedings to consider whether the

result of the unlawful second interrogation tainted the

third interrogation.

Respectfully Submitted,

/s/Timothy J. McGreevy

Dana, Golden, Moore & Rasmussen

131 North Main Avenue

Sioux Falls, South Dakota 57102

(605) 336-1730

Court-appointed Counsel for

Respondent