# Respondents Brief — Solem v. Stumes

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 638

## Text

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

(ij

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0045%3A5. Public record. Not legal advice.