Petition for Writ of Certiorari — Thompson v. Alabama
Supreme Court brief1992
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No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
MICHAEL EUGENE THOMPSON, Petitioner
Ve
STAT: OF ALABAMA, Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA
PETITION FOR WRIT OF CERTIORARI
STEPHEN T. WAIMEY*
H. DAVID HENRY
VINCENT J. DAVITT
VIKEN PAKRADOUNI
LeBOEUF, LAMB, LEIBY & MacCRAE
725 South Figueroa Street
Citiccerp Center, 36th Floor
Los Angeles, California 90017
(213) 955-7300
*Counsel of Record for Petitioner
Michael Eugene Thompson
No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
MICHAEL EUGENE THOMPSON, Petitioner
Vv.
STATE OF ALABAMA, Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA
PETITION FOR WRIT OF CERTIORARI
STEPHEN T. WAIMEY*
H. DAVID HENRY
VINCENT J. DAVITT
VIKEN PAKRADOUNI
LeBOEUF, LAMB, LEIBY & MacRAE
725 South Figueroa Street
Citicorp Center, 36th Floor
Los Angeles, California 90017
(213) 955-7300
*Counsel of Record for Petitioner
Michael Eugene Thompson
QUESTIONS PRESENTED
Whether the State of Alabama's
inflexible statutory limitations on
funding for representation of indigent
defendants in capital cases -- and the
chronically inadequate representation
which inevitably results from that
statutory scheme -- violate the Fifth,
Sixth and Fourteenth Amendments to the
Constitution of the United States where,
as here, such strict funding limitations
prevented inexperienced appointed counsel
from researching fundamental questions of
criminal law in capital cases, from having
the facts of the case investigated, from
developing Petitioner's defenses and
strategy, and from pursuing a meaningful
appeal?
ae Whether the admission into
evidence of Petitioner's confession
violates the Fifth, Sixth and Fourteenth
Amendments to the Constitution of the
United States, where the State's only
evidence of Petitioner's waiver of the
right to counsel and of the voluntariness
of his confession was limited to the
events of the last few minutes before the
confessional interrogation began, where
the State presented no evidence of Jack of
coercive conduct during the prior 24 hour
custodial period, and where uncontested
oral and written evidence established both
that the Petitioner repeatedly asserted
his rights to remain silent and to obtain
counsel, and that the confession was
obtained in response to a coercive charade
orchestrated by the State?
ii
TABLE OF CONTENTS
QUPSTIONS perperuren .....4.44+:20+:+eces i
Tae Ge Geena 6 6 eS elu Ue USM OS oe wR
TABLE OF AUTHORITIES aa oer ee eee a eae ee Vv
REPORTS OF PREVIOUS DECISIONS ..... ix
GROUNDS OF SUPREME COURT JURISDICTION . ix
APPLICABLE CONSTITUTIONAL
PROVISIONS AND STATUTES ........ ix
pay y 0 i oo oe PR ee ee 1
STATEMENT OF THE CASE 5
A. THE COERCED CONFESSION a) dew ares 5
B. CONDUCT OF COUNSEL ..+.-e«-e+-ee-. 10
REASONS FOR GRANTING REVIEW. ....... 25
5
THE SUPREME COURT SHOULD GRANT REVIEW
OF THIS PETITION TO RESOLVE SPECIAL AND
IMPORTANT FEDERAL QUESTIONS RELATING TO
WHETHER ALABAMA'S INFLEXIBLE STATUTORY
LIMITATIONS ON COMPENSATION PROVIDED TO
APPOINTED COUNSEL FOR INDIGENT
DEFENDANTS IN CAPITAL CASES VIOLATE
CONSTITUTIONAL GUARANTEES OF EFFECTIVE
ASSISTANCE OF COUNSEL, A FAIR TRIAL,
DUE PROCESS AND EQUAL PROTECTION OF
LAW. SUCH REVIEW IS PARTICULARLY
APPROPRIATE BECAUSE OF A CONFLICT
BETWEEN THE HIGHEST COURTS OF FLORIDA
AND ALABAMA ON THESE FEDERAL QUESTIONS,
AND BECAUSE THESE IMPORTANT QUESTIONS
OF FEDERAL LAW HAVE NOT BEEN, BUT
SHOULD BE, SETTLED BY THIS COURT... 25
iii
II. THE SUPREME COURT SHOULD GRANT REVIEW OF
THIS PETITION TO RESOLVE SPECIAL AND
IMPORTANT FEDERAL QUESTIONS RELATING TO
WHETHER A STATE MAY MEET ITS BURDEN OF
PROVING THE VOLUNTARINESS OF A CONFESSION
AND THE WAIVER OF RIGHT TO COUNSEL MERELY
BY REFERRING TO THE FACTS AT THE MOMENT
THE CONFESSION IS GIVEN OR WHETHER IT IS
REQUIRED TO ESTABLISH THAT THE CUSTODIAL
PERIOD IN ITS TOTALITY IS NON-COERCIVE.
SUCH REVIEW IS ESPECIALLY APPROPRIATE BOTH
BECAUSE THESE IMPORTANT ISSUES OF FEDERAL
LAW HAVE NOT BEEN, BUT SHOULD BE, DECIDED
BY THIS COURT, AND BECAUSE THE ALABAMA
COURT DECISIONS ARE DECIDED IN A WAY WHICH
CONFLICTS WITH EXISTING DECISIONS OF THIS
et a a a a ae a ee a a a a ae
A. The State Court's interpretation
of the degree of evidence needed
to prove that the alleged
confession was voluntary violates
constitutional requirements. .. 39
B. Both the alleged waiver of the
right to counsel and the alleged
confession were the direct result
of coercive tactics designed to
overbear the will of Petitioner,
and thus were involuntary .... 43
Cc. The granting of certiorari in this
case would not be a mere academic
exercise since the erroneous
introduction of the involuntary
confessions caused harm to
petitioner's constitutional
eo) a a ee a
CONCLUSION .. « «© «© © © © © © © «© © «© «© «© 94
iv
—_ [1 —— a lf a a ee a
an « — ~~ | bal |
TABLE OF AUTHORITIES
CASES
Arizona v. Fulminarte, U.S. ‘
111 S. Ct. 1246 (1991). . ; 50,
-¥
53
Arizona v. Roberson, 486 U.S. 675
(1988) . 7 : ; ; 45,
49
Berkemer v. McCarty, 468 U.S. 420
(1984) . ... ; : . . 46
wer v. Williams, 430 U.S. 387
(1977) . : . ‘ ? ; 40,
44
Brookhait v. cans, 384 U.S. 1
(1966) ; : - , 40,
46,
47,
51
Vv own, 479 U.S. 538
(1987). . , : ; : 7 ae
Chapman v. State of California,
386 U.S. 18 (1967). . . . §3
DeLisio v. Superior Court,
740 P.2d 437 (1987) . ’ . 2
Edwards v. Arizona, 451 U.S. 477
(1981). ; : ; P : 44,
45,
48
Fare v, Michael C., 442 U.S. 707
(1979). . . : ; P : 45
Graves v. United States, 150 U.S. 115
(1893) . e ‘ PA - ‘ ‘ 49
, 479 So. 2d 76
(1985), cert. denied,
Grayson v. Alabama, 474 U.S. 865
(1985) ; ’ . Pad Sit 2% 31
Griffin v. Illinois, 351 U.S. 12
(1956). ; ; ; 5 ita ae ea
Holt v. State, 372 So. 2d 370
(Ala. 1978) . ; ; a
Johnson v. Mississippi, 486 U.S. 578
(1988) . R ; Pin te os aes
37
Johnson v. Zerbst, 304 U.S. 458
(1938) . _ . > - e 39,
44
1, 714 F.2d 1481
(11th Cir. 1983) ; © « « 34
, 404 U.S. 477
(1972) . . . . . ‘ 40
, 824 F.2d 879
(11th Cir. 1987). . o eo wae
34
, 491 So. 2d
1109 (Fla. 1986),
cert. denied, 479 U.S. 1043
(1987). ‘ ° . ‘ . 28
Mathis v. Kant, 704 F. Supp. 1062
(N.D. Ga. 1989), amended
in part, 708 F. Supp. 339
(N.D. Ga. 1989) . . ° e 34
503 So. 2d 887 (Ala. 1987). 6
vi
Michael Eugene Thompson v. State
503 So. 2d 871
(Ala. Crim. App. 1986)
Michael Eugene Thompson v. State,
581 So. 2d 1216
(Ala. Crim. App. 1991)
Michigan v. Jackson, 475
(1986)
Michigan v. Mosley, 423
(1975) :
Miranda v. Arizona, 385 U.S.
(1966)
Moran v. Burbine, 475 U.S. 41
(1986)
North Carolina vy. Butler, 441
(1979)
Rhode Island v. Innis, 446 U.
(1980)
State ex rel, Stephen v. Stat
242 Kan. 336, 747 P.2d 816
(1987)
State v, Robinson, 465 A.2d 1
(N.H. 1983)
Strickland v. Washington, 466
(1984) :
Thomas v. Kemp, 796 F.2d 1322
(llth Cir. 1986), cert.
denied, 479 U.S. 966 (1986)
Vil
J
Thompson v. Wainwright, 787 F.2d 1447
(11th Cir. 1986),
cert. denied, 481 U.S. i042
(1987)
United States v. Lamerson, 457 F.2d 371
[Sen ist. 1972) , : ; ; 34
United States v. Mahone, 537 F.2d 922
(7th Cir. 1976) : 50
White v. Commissioners of
Pinellas County, 537 So. 2d 1376
(Fla. 1989). ° ° ° 28,
29
Wong Sun v. United States, 371 U.S. 471
(1963) : : . §1
Woodson v. North Carolina, 428 28¢
(1976) 26
STATUTES
138 S.C. § 3006A(d) (2) . 29
1 U.S.C. § 848(q) (10) 29
28 U.S.C. § 1257 ; . &€6
Alabama Code Title 15, Chapter 12
Article 2
Alabama Temporary Rules of
Criminal Procedure . . . 24
Cal. Penal Code § 987.2 ; 31
Tex. Code of Crim. Proc
Article 26.05
a
Viis
REPORTS OF PREVIOUS DECISIONS
Michael Eugene Thompson v. State, 581 So. 2d
1216 (Ala. Crim. App. 1991)
Ex Parte Michael Eugene Thompson, 503 So. 2d
887 (Ala. 1987)
Michael Eugene Thompson v. State, 503 So. 2d
871 (Ala. Crim. App. 1986)
GROUNDS OF SUPREME COURT JURISDICTION
The Supreme Court has jurisdiction
to review the decision of the Alabama Supreme
Court dated June 21, 1991, by writ of
certiorari based on 28 U.S.C. §1257.
Petitioner challenges the validity of that
final decision based on the ground that it is
repugnant to the Constitution of the United
States and Petitioner's rights thereunder.
APPLICABLE CONSTITUTIONAL
PROVISIONS AND STATUTES
Applicable Constitutional
provisions and statutes, identified here
pursuant to subsection Rule 14.1(f) of this
Court, include: the Fifth, Sixth and
Fourteenth Amendments to the Constitution of
the United States; and the provisions
allowing for appointment and compensation of
ix
OQ OQ QQ eee
fr.
¢
No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
MICHAEL EUGENE THOMPSON, Petitioner
STATE OF ALABAMA, Respondent
f ITLON FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA
INTRODUCTION
Petitioner Michael Thompsor
respectfully requests that a writ of
certiorari issue to review the decision of
the Supreme Court of the State of Al
denying Petitioner's claim for post-
conviction relief.
This petition is based on violations
sf Petitioner's fundamental constitutional
~
AS a i in i SC tic
rights in -wo areas which bear on the
fairness of the trial afforded to Petitioner.
First, Petitioner's appointed trial counsel,
who were inexperienced in defending capital
cases, were unprepared to defend Petitioner
at trial due to the $1,000 limitation on
their pre-trial fees imposed by state law.
AS a consequence, counsel did not commit the
necessary time and effort to the case. They
thus misunderstood the fundamental legal
issues applicable to the proceeding, ignored
available constitutional defenses, and
offered an ill-conceived defense that in
itself assured that Michael Thompson would be
convicted and sentenced to death. These same
financial constraints also prevented counsel
from conducting an investigation of the case,
in spite of their awareness of the
fundamental importance of such an
investigation in defending Petitioner.
This combination of an inability to
spend time in preparation for trial as well
as a lack of funds to retain investigators
and expert consultants, or to cover their own
expenses in pursuing Petitioner's defense,
also caused counsel to completely fail to
pursue many available defenses. Among these
neglected defenses were those related to the
lack of corroboration of the State's case and
defendant's alibi, the coerced confession,
Petitioner's diminished mental capacity
arising from his fatner's violent death and
his subsequent alcchol abuse, and numerous
factual matters in mitigation of his
sentence.
Second, the uncontested evidence
shows that the confession offered in the
trial court as the primary evidence against
Michael Thompson was coerced over a period of
more than 24 hours from Friday to Saturday
evening. During this period, Petitioner had
repeatedly asserted his right to remain
silent and asserted his right to counsel, and
had refused to sign a document waiving those
his rights, which fact was duly noted by the
sheriffs. In spite of those assertions of
rights, the questioning periodically recurred
until the sheriffs involved resorted to a
plan designed to trick and coerce Petitioner
into confessing. Despite the foregoing, the
State was permitted to establish the putative
voluntariness of the confession by offering
evidence of Michael Thompson's conduct and
his treatment by the sheriffs during only the
last few minutes prior to his confessional
interrogation, after his will had been
broken. At the hearing for post-conviction
relief, the State, after finally being forced
to comply with the Brady rule by producing
the written evidence of Petitioner's refusal
to waive his constitutional rights, and with
full knowledge of Petitioner's testimony and
arguments, nevertheless stil] failed to
Present any testimony to contradict the
coercive tactics described by Petitioner to
the Court.
STATEMENT OF THE CASE
On January 5, 1985, Shirley Franklin,
Michael Thompson's former live-in girlfriend,
who had recently left Petitioner to return to
her husband, gave a statement to the police
in response to a reward cffer. In the
statement, she claimed that Michael Thompson
had committed a December 10, 1984 robbery of
a convenience store, kidnapped the store's
clerk, Maisie Gray, and later shot her.
Michael Thompson was arrested early in the
evening of Friday, January 5, 1985, and was
incarcerated without arraignment or other
access to the judicial system until the
following Monday.
A. THE COERCED CONFESSION
Petitioner testified at trial that
shortly after being arrested he not only
asserted his right to remain silent, but aiso
invoked his right to counsel. This testimony
was undisputed. It is further supported and
corroborated by a waiver of rights form dated
January 5th, 1850 hours, which Petitioner
a TT
refused to sign and which refusal was entered
on the form by the sheriffs then present.
The State did not call the officers whose
Signatures appear on the refused waiver, or
any of the other police officers who were
present during the 24 hour period leading to
his confession, to rebut Petitioner's
testimony. Moreover, this essential
corroborating document was withheld by the
State in defiance of Petitioner's specific
motion to produce and thus was not available
for consideration by the trial court.’
The uncontested evidence further
Shows that, after refusing to waive his
rights, Petitioner asked to make a phone call
and again requested an attorney. Both
The trial court granted petitioner's
motion to produce, which included requests
for “any and all statements made by Defendant
herein Michael Eugene Thompson," "any and
all police reports and detective bureau
reports" and “all evidence or information in
possession of police or prosecutor which
tends to exculpate Defendant or which aids in
the preparation of a defense." Nevertheless,
the State withheld the waiver form until
further requests were made during
Petitioner's post-conviction proceedings.
6
requests were refused. After a leepless
night, Petitioner was repeatedly interrogated
on January 6, 1985, but continued to refuse
to waive his rights or to make a statement,
‘continued te request an attorney and
-ontinued to be denied access to a telephone.
During the afternoon, A.G. Lang, 4a
police investigator from outside the county
who was acquainted with Petitioner, was
brought in to make a personal appeal to
Thompson. Lang misinformed Petitioner that
some third party had made statements which
led te his arrest -- although it was in fact
Shirley Franklin who had implicated
Petitioner -- and that the police had
arrested Franklin for the murder and had her
in custody. Lang moreover led Petitioner to
believe that Franklin would be tried if
Petitioner did not confess, that the
authorities had sufficient information to
assure her conviction, and that, because ot
her prior felony conviction record, she would
be sentenced to death once convicted.
Eee
Significantly, Lang failed to rebut any of
these facts when called to testify.
After this conversation, Petitioner
asked to be allowed to talk with Shirley
Franklin. Brought in weeping and disheveled,
Franklin was in handcuffs, although she was
not then, nor had she ever been, under
arrest. After an emotional discussion alone
with Franklin -- in which she repeatedly
stated that she would be tried and put to
death if Petitioner did not confess --
Petitioner agreed to save his onetime
girlfriend by confessing to the murder. In
exchange, Petitioner asked only that Shirley
Franklin get him a lawyer. She never did.
Shortly thereafter, Petitioner submitted to a
confessional interrogation.
When that recorded confession was
offered into evidence at trial, the only
testimony offered by the State on the
question of voluntariness was given by
Sheriff McDowell, who, by his own admission,
had no personal knowledge of the
—————————eaEaEeEEeeeeeEeEeEeEeEUuneeeeeeeee
circumstances leading up to the confession
and was merely brought into the room at the
last moment to take the confession. Sheriff
McDoweli's statem nt that neither he nor
anyone in his presence used threats,
coercion, or persuasion to compel the
statement therefore should have been given no
weight.
Despite these facts, the trial court
found that the confession was voluntarily
made and admitted it into evidence.°
¢ The taped interrogation was presented in
an arranged and incomplete form at trial,
since the tape recorder used to tape it was
turned on and off repeatedly during the
questioning.
> A second brief statement alleged to have
been made in the presence of investigator
Larry Fowler on the afternoon of January 8,
1985, literally moments before Thompson was
to see his appointed counsel for the first
time, was also improperly admitted.
Investigator Fowler admittedly failed to
advise Petitioner of any of his rights and it
was shown that, after Fowler later wrote down
the alleged statement, Petitioner was never
given an opportunity to read over the alleged
statement, or in any way given the
opportunity to determine its accuracy. The
State also failed to produce the other
witness to the alleged conversation,
Investigator Robert Walker. Petitioner
(continued...)
i
By the time of trial, Petitioner had
learned of the deceptive charade that had led
to his agreement to confess. After the
confession was admitted at trial, Thompson,
consumed with rage and betrayal, did not
attempt to clear himself when called to
testify, but instead only sought to implicate
Shirley Franklin. Thus, Petitioner's trial
testimony itself was tainted as the direct
result of the earlier coercive tactics
utilized by the State.
B. CONDUCT OF COUNSEL
From the moment of their appointment
on January 8, 1985, the conduct of Michael
Thompson's reluctant counsel severely
prejudiced his defense.
John Dobson and B.J. McPherson were
appointed as co-counsel for Michael
Thompson's trial under authority of Alabama
Code Title 15, Chapter 12, Article 2. That
statute provides that appointed counsel in
*(...continued)
vigorously denied ever making such a
statement.
10
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capital cases may each be paid a maximum of
$1,000 for pre-trial preparation at the rate
of $20 per hour. The statute does not permit
additional pre-trial compensation even in
extraordinary cases. While the statute does
give the court discretion to approve
reimbursement for “reasonable” expense
requests made in advance, in practice such
funds are rarely forthcoming, so that, in the
case below, appointed counsel did not bother
to make such requests. The reality of
inadequate funding was graphically explained
by one of the appointed counsel during
questioning at the post-conviction hearing,
when he was asked why he did not hire an
investigator: "I would have had to pay for
it out of my own funds, and I had three kids
in college, and I couldn't afford it."
* Alabama's statutory scheme does not limit
the number of hours which an appointed
attorney can be compensated for during trial,
but he is limited to a rate of $40 per hour.
On appeal, another $1,000 limit at $20 per
hour applies.
The inevitable results of such a
System are borne out by what happened to
Michael Thompson. However well intentioned
counsel may have been, their lack of
experience, lack of funding, and lack of time
oOmmitment ensured that Michael Thompson was
agequate or meaningful representation.
At the post-conviction proceeding,
appointed counsel Dobson testified that
"(t]he overall strategy of the trial was one
of diminished capacity, limited
participation, addiction to drugs and
alcohol, and remorse." This explanation
suggests that counsel intended to attempt to
avoid conviction and a capital sentence by
showing that Michael Thompson lacked intent,
did not himself pull the trigger, and acted
to the extent he did only as the result of
the mitigating circumstance of his personally
tragic life and substance addiction.
However, though counsel suggested this
approach in hindsight, they did not pursue it
in the trial, largely because they were
12
sai seh cA nA ENT AAR A AA RNC
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lacking in experience in such cases,
uncompensated, unsupported financially, and,
as a result, wholly unprepared.
In opening argument, inexperience and
lack of preparation were evident in counsel's
stumbling, harmful emphasis of the fact that
they were appointed and did not represent Mr.
Thompson by choice, their declaration that
this was a terrible crime with gruesome
evidence, and their failure to annunciate any
reasonable defense or given any other
indication that any trial strategy was ever
developed. Defense counsel went on to argue
that the evidence would show that Thompson
committed robbery and kidnapping, but that
Shirley Franklin had pulled the trigger.
However, under Alabama law, Petitioner could
be sentenced to death even if the jury
believed that Shirley had committed the
murder. Indeed, during post-trial
proceedings Dobson admitted that his opening
was in fact a statement that Thompson was
guilty of capital murder.
13
suc CAN AN i a RM
Nevertheless, counsel presented this
as their only defense. As the apparent
result of their lack of preparation, counsel
then failed to conduct adequate research to
understand that they had to request the
lesser included offense instructions of
manslaughter and robbery based on those
facts.
Counsel also failed to prepare to
meet the allegations of the State's key
witnesses. The State's case was based almost
exclusively on the coerced confession and the
testimony of Shirley Franklin. Yet, counsel
did not hire investigators to establish facts
to discredit her alibi nor did they expend
the time and funds needed to obtain her
conviction record, despite their awareness
that Franklin was a felon. Similarly, they
did not spend the time and funds needed to
establish whether a deal had been struck
between the prosecution and Franklin.
Lacking any factual information to go on,
counsel were reduced to an attempt to impeach
14
Franklin's testimony by alleging her
provocation of other armed robberies with
Petitioner.
The overall lack of preparation also
marked the testimony of Petitioner.
Counsel were informed by Petitioner of the
coercive nature of his purported confession.
Yet, counsel were not prepared to present a
challenge based on these facts, and indeed
failed to question Michael Thompson regarding
these facts or to otherwise bring them to the
trial court's attention when the court
considered the admissibility of Thompson's
confession.
Counsel also did not expend the time
needed to research the legal standards
regarding admissibility of confessions.
In ruling that the confession was freely
made, the trial court expressly relied upon
the "collateral benefit" doctrine. The
Alabama Supreme Court, however, had expressly
rejected that doctrine some seven years prior
to the trial in Holt v. State, 372 So. 2a 370
15
eee
(Ala. 1978), which case and ruling counsel
were unaware of.
Appointed counsel stated in post-
trial proceedings that one of the most
important tasks for a capital defense
attorney is the thorough investigation of the
defendant's life history. However, they also
testified that they could not afford, and
thus made no serious attempt to undertake, an
investigation. They did not investigate the
obvious dissimilarities in the physical
descriptions offered by witnesses of the
suspect and car and the actual appearance of
Petitioner and his car; they did not seek to
have the car ocr the victim's body examined
for specimens which could have exculpated
Petitioner; and they never investigated
Petitioner's explanation of events showing
that he was not involved in the crime.
Similarly, appointed counsel
understood that, at age 16, Petitioner had
suffered serious mental distress when his
father was murdered in a dispute concerning a
16
seca il i i iii
debt owed by the murderer to Petitioner.
They were also aware that this devastating
event had driven Petitioner to the addictions
to drugs and alcohol that continued to impede
Petitioner up to the time the crime was
committed. Counsel only began to realize the
significance of these facts, and acted to
obtain approval of a request for psychiatric
support, 18 days before the trial -- fully 3
1/2 months after they were retained.
Although the psychiatric report's
only unhelpful conclusion was that Petitioner
was fit to stand trial, counsel were unable
to evaluate or research the issues raised by
the psychiatrist's report, and thus they
simply decided that it was not useful.
Counsel failed to recognize the relevance of
the report's other conclusions, which stated
that Petitioner was suffering from
diagnosable psychiatric disorders: substance
abuse and anti-social personality, a serious
DSM III emotional disturbance or disorder.
These diagnosed illnesses could have been
17
used as the cornerstone of a defense designed
to negate specific intent. Yet, at no time
did either counsel try to establish such a
defense. Indeed, McPherson's post-conviction
testimony revealed that he did not even
recognize the possibility of such a defense.
AS a consequence of having developed
no iegal or factual defenses, appointed
counsel placed Petitioner on the stand and
permitted him to testify, either without
realizing or without having taken the time to
advise Petitioner that he could be found
guilty of capital murder and sentenced to
death even if the court accepted his
testimony that Franklin had been responsible
for the crime. Thompson's motivation at the
time was to strike out at Franklin, but,
because the legal effect was unexplained to
him, he only implicated himself.
Lack of preparation and planning also
marked the closing arguments presented to the
jury during the guilt phase. Dobson conceded
that he simply never took the time to prepare
18
a closing argument for that phase of the
trial.
A similar lack of preparation was
present at the penalty phase. Counsel did
not expend the time or money needed to seek
out and prepare witnesses to testify at that
phase. Additionally, Petitioner's mother
later testified that counsel did not take any
time to prepare her for her testimony during
the penalty phase; their only instruction was
for her to beg for mercy and her son's life.
Additionally, counsel failed to
conduct the research needed to understand the
legal significance and mitigating value of
Petitioner's personal history in relation to
the sentencing stage of the trial. At no
time during Petitioner's testimony had they
tried to establish that Petitioner's
traumatic history had a bearing on his loss
of control of his life and that the resulting
use of drugs and alcohol, even on the night
of the crime, would have made the imposition
of a death sentence both inappropriate and
19
useless to achieve any valid state purpose.
They similarly did not seek to establish
mitigation based on Petitioner's feelings of
contrition and anguish over Maisie Gray's
death.
Other facts which counsel either
never spent the time to learn about or never
learned the Significance of included that,
despite having dropped out of school in the
eighth grade, Petitioner had worked
productively at several jobs and been
considered a stable and skilied employee,
that he had attempted to overcome his drug
and alcohol addiction through religion, that
he was a loving and caring uncle and
Supportive brother-in-law, and that he had
also attempted to help others to overcome
problems in their lives.
Consistent with that, counsel did not
prepare witnesses such as Petitioner's uncle,
Sister-in-law, pastor, and mother, as well as
a psychiatrist, to address these issues.
Counsel also did not obtain Petitioner's
20
adequately represent Petitioner.’
Michael Thompson was found guilty of
capital murder at 5:35 p.m. on Friday May 10,
1985. Thirty minutes later, at 6:05 p.m.,
tne penalty stage began and was completed
within about an hour. After argument,
counsel then allowed the court to commit the
gross error of instructing the jury that
their verdict was merely advisory, an
instruction which was particularly harmful
because 1t was already late Friday night of
Mother's Day weekend.
> There is a strong inference that appointed
counsel were well aware that they had not
provided Petitioner with adequate counsel for
such capital case. In the midst of the guilt
stage of the trial, on May 8, 1985, they
asked that Michael Thompson handwrite and
execute the following statement:
I am satisfied with the work done by
my lawyers in this case. [I believe
they have represented me well, and in
a competent manner. I have no
complaints to make. All suggestions
I have made they have followed, and,
they have interviewed every witness
and conducted all investigations
which I have requested.
The embarassment in such an act by an
attorney is rather painfully apparent.
22
—eEeEEEEe___
In less than 20 minutes, the jury
returned their "advisory" verdict to the
judge that a death sentence shoulda be
imposed.
On appeal to the Alabama Court of
Criminal Appeals and the Alabama Supreme
Court, appointed counsel were similarly
ineffective. Counsel failed to raise many
issues on appeal which would have constituted
reversible error, and which should have
resulted in a successful appeal.° Both
courts affirmed Michael Thompson's
conviction.
In February, 1990, the Circuit Court
of Blount County issued an Opinion and Order
rejecting Michael Thompson's Petition seeking
post-conviction relief under Rule 20 of the
6 In the State post-conviction proceedings,
these issues were raised where arguably
possible on the Rule 20 appeal based on the
argument that the error had never been
reviewed by the appellate courts because of
the lack of effective assistance of counsel.
However, the Alabama courts held that those
issues were waived by virtue of appointed
counsel's failure to properly preserve Or
present them in the courts below.
23
Alabama Temporary Rules of Criminal Procedure
("Rule 20") .’
In January, 1991, the Alabama Court
of Criminal Appeals affirmed the trial
court's denial of Michael Thompson's petition
seeking Rule 20 relief.*® The Supreme Court
of Alabama denied Michael Thompson's petition
' The ineffective assistance of counsel and
improperly admitted confession claims were
both raised, jnter alia, in the Rule 20
petition filed with the Circuit Court of
Blount County on May 9, 1989. The Rule 20
hearing brought cut direct and inferential
testimony on the effect of the statutory
financial limitations on counsel. These
Claims were rejected by that Court in its
Opinion and Order dated February 15, 1990,
which is included in the appendix to this
Petition.
° The appeal of the Circuit Court's rejection
of Petitioner's Rule 20 petition also
asserted the ineffective assistance of
ccunsel, including raising the effect of
statutory financial limitations on
compensation for counsel, and improperly
admitted confession claims in a brief filed
with the Alabama Court of Criminal Appeals.
That Court, in an opinion dated January 18,
1991 (which opinion is also included in the
appendix to this Petition), again rejected
Petitioner's claims.
24
ee
for Review on June 2l, 1991.’
80 19) N VIEW
I. THE SUPREME COURT SHOULD GRANT REVIEW OF
THIS PETITION TO RESOLVE SPECIAL AND
IMPORTANT FEDERAL QUESTIONS RELATING TO
WHETHER ALABAMA'S INFLEXIBLE STATUTORY
LIMITATIONS ON COMPENSATION PROVIDED TO
APPOINTED COUNSEL FOR INDIGENT DEFENDANTS
IN CAPITAL CASES VIOLATE CONSTITUTIONAL
GUARANTEES OF EFFECTIVE ASSISTANCE OF
COUNSEL, A FAIR TRIAL, DUE PROCESS AND
EQUAL PROTECTION OF LAW. SUCH REVIEW I8
PARTICULARLY APPROPRIATE BECAUSE OF A
CONFLICT BETWEEN THE HIGHEST COURTS OF
FLORIDA AND ALABAMA ON THESE FEDERAL
QUESTIONS, AND BECAUSE THESE IMPORTANT
QUESTIONS OF FEDERAL LAW HAVE NOT BEEN,
BUT SHOULD BE, SETTLED BY THIS COURT
This court consistently nas held that
the Sixth Amendment requires that the States
provide representation for indigent
defendants that, in the totality of
circumstances, works to assure that the trial
court's outcome is just. See Strickland v.
Washington, 466 U.S. 668, 687-688 (1984).
% The ineffective assistance of counsel and
improper admission of the confession issues
were also raised, inter alia, in a petition
for Review filed with the Alabama Supreme
Court. By an Order dated June 21, 1991, that
Court again rejected Petitioner's claims.
That Order is included in the appendix to
this Petition.
25
Moreover, this Court recognizes that
the death penalty is "qualitatively"
different from other forms of punishment.
£-g., Woodson v. North Carolina, 428 U.S.
280, 305 (1976). Accordingly, it has
acknowledged that "the fundamenta! respect
for humanity underlying the Eighth
Amendment's prohibition against cruel and
unusual punishment gives rise to a special
"'need for reliability in the determination
that death is the appropriate punishment'" in
any capital case." Johnson v. Mississippi,
486 U.S. 578, 584 (1988) (quoting Gardner v.
Florida, 430 U.S. 349, 363-64 (1977)).
Petitioner submits that the required
levels of representation and reliability are
denied where the maximum fee set by a
statutory scheme for payment of appointed
attorneys assures that the inexperienced
counsel who will be appointed to defend
capital defendants will not be able to expend
the time and money needed to present an
adequate defense. Indeed, such statutory
26
———————— ee
limits deny counsel the time needed to
research and understand the numerous legal
standards affecting and benefitting their
clients and to delve into the facts needed t<
defend their clients, and the money to hire
investigators, engage in travel and retain
consulting experts. All of these commitments
of time and resources are fundamentally
necessary to defend capital cases.
In recent years, the Supreme Courts
}
»f two States have recognized that statutory
saps on compensation for appointed counsel
violate or derogate the accused's right to
effective representation under the Sixth
Amendment. The Supreme Court of Alabama has,
however, rejected such arguments. A gross
disparity has therefore arisen between
Alabama and other states whereby a
defendant's constitutional rights in Alabama
simply do not have the same meaning they have
in other states. In Alabama, appointed
counsel will never be able to afford to learn
wnat those rights are and will never have the
financial resources needed to develop the
facts needed to vindicate those rights.
In Makemson v. Martin County, 491 So.
2d 1109 (Fla. 1986), cert. denied 479 U.S.
1043 (1987), the Florida Supreme Court held
that when applied to difficult cases, a
Statutory maximum fee of $3500 paid to
appointed counsel "interferes with the Sixth
Amendment right to counsel." Id. at 1112.
White v. Commissioners of Pinellas County,
537 So. 2d 1376, 1379 (Fla. 1989) extended
the scope of Makemson by ruling that "all
capital cases by their very nature can be
considered extraordinary and unusual" and
require a departure from statutory maximum
payments. Id. at i378. Again, the court
reiterated that its primary concern was with
"an indigent defendant's right to competent
and effective representation, not the
attorney's right to reasonable compensation."
White, 537 So. 2d at 1379.
The Florida Supreme Court further
emphasized that the "relationship between an
28
attorney's compensation and the quality of
his or her representation cannot be ignored."
White v. Commissioners of Pinellas County,
537 So. 2d at 1379. “It may be difficult for
an attorney to disregard that he or she may
not be reasonably compensated for the legal
services provided due to the statutory
limit .. .. <A spectre is then raised that
the defendant received less than the
adequate, effective representation to which
he or she is entitled, the very injustice
appointed counsel was intended to remedy."
Ia.”
0 Both Congress and the Bar have recognized
the nexus between adequate compensation and
adequate representation where capital
punishment is involved.
The Criminal Justice Act of 1964
generally limits the fees available to
lawyers representing indigents in federal
court to $2500. 18 U.S.C. § 3006A(d) (2).
Yet, in reenacting a federal death penalty,
Congress specifically provided that attorneys
representing capital defendants would be
entitled to reasonable compensation without
being subject to any such limitation. 21
U.S.C. § 848(q)(10). The American Bar
Association even more expressly has concluded
that "[w]ithout adequate compensation, the
right to [appointed] counsel in capital cases
is merely illusory." American Bar
(continued...)
In the instant case, we need not
speculate regarding the spectre of the harn.
The record is too clear on that point.
In spite of the natural desire of humans to
defend their actions, the post-conviction
testimony of Petitioner's appointed counsel
demonstrates they were ever-conscious of the
financial constraints imposed by the Alabama
statute. Indeed, the most tragic and damning
indictment of Alabama's compensation system
came from one of Petitioner's appointed
counsel: "I would have had to pay for it
[the investigation] out of my own funds, and
I had three kids in college, and I couldn't
afford it."
The court of last resort of another
jurisdiction has reached a similar result,
relying on the same sort of analysis. In
State v. Robinson, 465 A.2d 1214, 1216 (N.H.
(continued)
Association, Toward a More Just and Effective
S
Cases, at p. 64 (October 1989).
30
1983), the New Hampshire Supreme Court lifted
the statutory $500 cap on fees in misdemeanor
cases on a case-by-case basis in order to
avoid unfairness and unreasonableness to the
attorney and also to “adequately protect both
the indigent defense fund and the right of an
accused citizen to effective assistance of
legal counsel.""'
Yet, in Ex Parte Grayson, 479 So. 2d
76 (1985), cert. denied Grayson v. Alabama,
474 U.S. 865 (1985) the Alabama Supreme Court
rejected an argument that statutory maximum
payments violate rights of adequate
11 ; :
In many states, of course, this issue
never will be confronted because adequate
compensation schemes have been legislatively
created to vindicate the Sixth Amendment
right to counsel. See, e.g., Cal. Penal Code
§ 987.2 (appointed criminal defense counsel
"shall receive a reasonable sum for
compensation and for necessary expenses") ;
Tex. Crim. Proc. Article 26.05 (reasonable
fees and expenses for all reasonable and
necessary time spent on the case.) In other
states, the courts have found statutes which
place maximums on fees paid to appointed
counsel unconstitutional on other grounds.
State ex rel]. Stephen v. State, 242 Kan. 336,
747 P.2d 816 (1987) (inadequate compensation
of appointed attorneys is unconstitutional
taking); DeLisio v. Superior Court, 740 P.2d
437 (1987) (same).
31
representation, due process, and equal
protection. That decision is now settled law
in Alabama. The inevitable result of the
decision in Grayson is borne out here.
Indigent prisoners in Alabama receive a level
of representation which the highest courts of
other states have found constitutionally
invalid. In fact, courts in both New
Hampshire and Florida applying constitutional
Standards would in certain cases authorize
more money for the defense of a misdemeanor
case than an Alabama court could authorize
for a capital case. This virtually
unbelievable discrepancy, when coupled with
the performance of trial counsel below,
requires that certiorari be granted so that
the issues raised by this case can be fully
briefed and argued.
Petitioner additionally submits that
this systemic problem Cannot be corrected
through the application of the case-by-case
constitutional standard regarding the
effective assistance of counsel set forth in
32
Strickland v. Washington, 466 U.s. 668
(1984). That standard seeks to ascertain
whether counsel failed tu possess or to
employ "such skill and knowledge" or make a
reasonable effort to “render the trial a
reliable adversarial testing process."
Strickland, 446 U.S. at 688.
However, in spite of the wide-ranging
failures of appointed counsel to carry out
their obligations to Petitioner, both the
Alabama Court of Criminal Appeals and the
Alabama Supreme Court found that skill,
knowledge and effort of appointed counsel
were adequate to meet the Strickland
standard. Thompson v. State, 581 So.2d 1216,
1219 (Ala. Crim. App. 1991), cert, denied No.
1900927 (Ala. June 21, 1991). Petitioner
'’@ Those faiiures by appointed counsel
included the following: (1) developed no
defense strategy and presented no theory of
defense; Strickland v. Washington, 466 U.S.
668 (1984); Magill _v. Dugger, 824 F.2d 879,
884-885 (llth Cir. 1987); (2) failed to
investigate their client and the case against
him, Magill, 824 F.2d at 886 n.11, 889-890;
Thompson v. Wainwright, 787 F.2d 1447, 1450
(llth Cir. 1986), cert. denied 481 U.S. 1042
(continued...)
33
submits that the conclusion of those courts
is simply another way of saying that the
performance of appointed counsel in this case
was Similar to that of other such appointed
'e( . .continued)
(1987); (3) neglected to present facts
regarding Thompson's repeated refusal to
waive his rights; (4) did not understand the
applicable law regarding the consequences of
Thompson's testimony and their arguments; (5)
failed to know that the Alabama Supreme Court
had rejected the legal doctrine explicitly
relied on by the trial court in admitting the
confession; (6) neglected to prepare Michael
Thompson for his trial testimony; MaGill], 824
F.2d at 889-90; (7) failed to prepare closing
arguments for either trial phase; (8)
repeatedly failed to object to the actions of
the prosecution; Unite tates v. on,
457 F.2d 371, 372 (Sth Cir. 1972); (9)
offered statements suggesting that Petitioner
had an extensive criminal background; (10)
failed to investigate or present key
mitigating facts; Mathis v. Kant, 704 F.
Supp. 1062, 1063 (N.D. Ga. 1989), amended in
Part 708 F. Supp. 339 (N.D. Ga. 1989); (11)
failed to prepare for the penaity phase; King
v. Strickland, 714 F.2d 1481, 1490-91 (11th
Cir. 1983); (12) made statements emphasizing
that the crime was heinous and that counsel
were appointed by the court; King v.
Strickland, 714 F.2d at 490; Mathis v. Kant,
704 F. Supp. at 1063-64; (13) failed to
investigate and offer mitigating evidence;
California v. Brown, 479 U.S. 538, 545
(1987); (14) made no effort to investigate
and develop a viable approach to the defense;
Thomas v. Kemp, 796 F.2d 1322, 1324 (11th
Cir. 1986), cert. denied 479 U.S. 966 (1986);
and, (15) offered no psychiatric evidence.
34
eee
See
counsel which those courts have reviewed.
As opposed to being an endorsement of the
reliability of the system, it points to the
systemic failure to provide meaningful
representation to indigent capital defendants
in Alabama.
Moreover, the most insidious problem
with providing inadequate compensation to the
attorneys and no funds to pay for
investigations and other necessary expenses
is that its effect is normally difficult or
impossible to identify, especially because
there is such a natural desire by well-
meaning appointed counsel to argue that they
still did an adequate job. We are fortunate
that trial counsel in this case made so
clear, if Petitioner could have paid that
same attorney reasonable rates for his
services -- so the attorney could pay his
children's college bills -- Petitioner would
have received far better representation than
he got. The question is thus inescapable as
to whether a system can be constitutionally
35
sound when the representation afforded a
capital defendant is below that found in a
standard commercial matter in rural Alabama.
See, Griffin v. Illinois, 351 U.S. 12, 19
(1956) ("(t)here can be no equal justice
where the kind of trial a man gets depends on
the amount of money he has")."
In setting a maximum fee of but $1000
for pre~trial work performed by appointed
counsel of capital defendants, the Alabama
legislature has moreover ignored the express
7 Indigent defendants such as Petitioner
are often represented by lawyers who are
"handicapped by a system that provides
disincentives to thorough and effective
representation." The National Law Journal,
June 11, 1990, at 35, col. 4. Frequent
shortfails at trial include "inadequate
penalty phase investigation, unskilled voir
dire, lack of affirmative defenses in both
phases, (and) failure to object and to
preserve issues for appeal." Id, at 36, col.
l. "[{A]ggravating defense counsel's lack
of experience is Alabama's compensation
System... .. The State pays appointed
defense counsel $20 per hour for out-of-court
time, with a cap of $1,000 per trial phase,
and $40 per hour for in-court time (no cap)
and ‘reasonable' expenses. Although all
reasonable expenses are to be reimbursed,
lawyer after lawyer insisted funds were
inadequate and that judges made clear very
early there were limits." Id, at 36, col. 1.
36
a a aaa
ooo §
guidance of this Court to ensure the
reliability of the state's capital punishment
system in order to meet the requirements of
the United States Constitution. See Johnson
v. Mississippi, 486 U.S. at 363-64. The
Alabama Supreme Court has perpetuated the
problem by failing to correct that error.
Finally, under circumstances such as
these, it is hardly surprising that
Petitioner's counsel failed to give him
effective representation. Their admitted
lack of experience in capital cases, combined
with severe financial constraints, posed
almost insurmountable obstacles. Although it
is true that the state is not, and indeed
cannot be, required to provide indigent
defendants with the best representation that
money can buy, the representation provided by
Alabama's Pca echene falls so far short
of adequate that Petitioner's due process
right to a fair trial was violated.
Petitioner thus requests that this
Court grant certiorari to determine whether
37
L.
4 . ‘
) . ‘ Wil
> Te. , 2 ae | t C Ci ‘
mle i i he } " | rT ré ‘
a > = T iT ° t
A . . ; ; -
¢ . Am, t ‘ I > t
. ‘
———————————
II. THE SUPRZME COURT SHOULD GRANT
REVIEW OF THIS PETITION TO RESOLVE
SPECIAL AND IMPORTANT FEDERAL
QUESTIONS RELATING TO WHETHER A
STATE MAY MEET ITS BURDEN OF
PROVING THE WAIVER OF RIGHT TO
COUNSEL AND THE VOLUNTARINESS OF A
CONFESSION MERELY BY REFERRING TO
THE STATE OF FACTS AT THE MOMENT
THE WAIVER AND CONFESSION ARE
OBTAINED OR WHETHER IT I8 REQUIRED
TO ESTABLISH THAT THE CUSTODIAL
PERIOD IN ITS TOTALITY IS NON-
COERCIVE. SUCH REVIEW [8
ESPECIALLY APPROPRIATE BOTH
BECAUSE THESE IMPORTANT ISSUES OF
FEDERAL LAW HAVE BEEN DECIDED BY
THE ALABAMA COURTS AND HAVE NOT
BEEN, BUT SHOULD BE, DECIDED BY
THIS COURT, AND BECAUSE THE
ALABAMA COURT DECISIONS CONFLICT
WITH EXISTING DECISIONS OF THIS
COURT.
A. The State Court's interpretation of
the degree of evidence needed to
prove that Petitioner's alleged
waiver of right to counsel and
alleged confession were voluntary
violates constitutional requirements.
When an accused asserts his right
to counsel, the State has the burden of
proving the existence of a voluntary waiver.
Michigan v. Jackson, 475 U.S. 625 (1986)
("(Ij]t is the State that has the burden of
establishing a valid waiver"); Johnson v.
Zerbst, 304 U.S. 458 (1938) (heavy burden on
39
the state to prove waiver of constitutional
rights). It is similarly well settled that
the State has the burden of proving the
voluntariness of an accused's confession.
Lego v. Twomey, 404 U.S. 477 (1972).
In Mi da v. Arizona, 385 U.S. 436,
475 (1966), this Court gave the rationale for
placing such a burden on the State:
Since the State is responsible for
establishing the isolated circumstances
under which the interrogation takes place
and has the only means of making available
corroborated evidence of warnings given
during incommunicado interrogation, the
burden is rightly on its shoulders.
Ia. at 4759.
The burden thus is on the State to
prove that the methods used to obtain both
the waiver of right to counsel and any
confession do not violate the fundamental
fairness requirements of due process.
Generally, courts are to indulge in every
reasonable presumption against waiver of such
fundamental constitutional rights. See e.g,.,
Brewer v, Williams, 430 U.S. 387, 405 (1977);
Brookhart v. Janis, 384 U-S. 1, 4 (1966).
40
eee r—S—”—.CONee
Recognizing the frequently
conflicting evidence on the issue of
voluntary waivers, the Court in Michigan v.
Jackson specifically reasoned:
(Wje should “indulge every reasonable
presumption against waiver of
fundamental constitutional rights."
(citation omitted). . . Doubts must be
resolved in favor of protecting the
constitutional claim. This settled
approach to questions of waiver
requires us to give a broad, rather
than a narrow, interpretation to a
defendant's request for counsel.
Michigan v. Jackson, 475 U.S. at 634.
In spite of the strong and clear
guidance provided by this Court, the Alabama
courts have found that the State sustained
its burden of proving the voluntariness of
both Petitioner's alleged waiver of his right
to counsel and alleged confession based
solely on the testimony of 4 single sheriff
who admittedly only saw Petitioner during the
last few minutes of the over twenty-four
hours of incarceration prior to the alleged
waiver, and who only testified as to what
took place in his presence. The State failed
to produce any evidence which would establish
|
ks
that the State's conduct was not coercive
during the remainder of the approximately
twenty-four hours that Petitioner was in
custody. In fact, the State even withheld
the crucial document, the waiver of rights
form that Petitioner refused to sign after
being taken into custody, which so strongly
Suggests that Petitioner's waiver and
confession were not voluntary. See North
Carolina v. Butler, 441 U.S. 369 (1979).
Moreover, the findings of such waiver
and voluntariness were sustained at the post-
trial hearing in spite of the State's
admitted violation of the Brady rule, the
uncontradicted documentary and oral evidence
of Petitioner regarding his repeated
assertions of the right to counsel and to
remain silent and the coercion and trickery
tactics used to obtain a confession.
Petitioner thus submits that his
Petition should be granted to vindicate these
key constitutional rights. More
specifically, the State's burden of proof
42
RG ee eee
should be expanded to require the State to
unequivocally establish the absence of
coercion during the entire period of custody
and not just during a time fragment
convenient to the State, when a "clean"
witness can come in at the last minute to
look at a "set stage" and say that no
coercion was present.
Further, a second principle should be
established to require the State to prove
that, once a prisoner refuses to waive his
rights, nothing has occurred between the time
of the refusal to waive rights and the waiver
which could have had a coercive effect on the
defendant.
B. Both the alleged waiver of the right
to counsel and the alleged confession
were the direct result of coercive
tactics designed to overbear the will
of Petitioner, and thus were
involuntary.
It is well established that the State
must clearly show "an intentional
relinquishment or abandonment of a known
right or privilege" in order for a waiver of
a right to counsel to be valid. See e.g
43
i
ee
w v. Wi , 430 U.S. 387, 405 (1977);
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
This Court in Edwards v. Arizona, 451 U.S.
477 (1981), summarized the voluntariness test
applied to waivers of right to counsel as
follows:
It is reasonably clear under our cases
that waivers of counsel must not only
be voluntary, but must also constitute
2 knowing and intelligent
relinquishment or abandonment of a
known right or privilege, a matter
which depends in each case "upon the
particular facts and circumstances
surrounding that case, including the
background, experience, and conduct of
the accused."
Id. at 482. (citations omitted).
In Edwards, defendant asserted on the
evening of his arrest his right to counsel
and his right to remain silent. On the
following morning, the police, without first
furnishing him with counsel, interrogated
defendant and ultimately obtained
incriminating admissions. This Court, in
holding that the questioning by the police on
the following morning violated defendant's
rights under the Fifth and Fourteenth
44
Amendments, made clear that a bright-line
rule applies with respect to an individual's
right to counsel:
([Wjhen an accused has invoked his right to
have counsel present during custodial
interrogation, a valid waiver of that
right cannot be established by showing
only that he responded to further police-
initiated custodial interrogation even if
he had been advised of his rights. We
further hold that an accused, .. . having
expressed his desire to deal with the
police only through counsel, [shall] not
[be] subject to further interrogation by
the authorities until counsel has been
made available to him, unless the accused
himself initiates further communication,
exchanges, or conversations with the
police.
Id. at 485; see also Arizona v. Roberson, 486
U.S. 675 (1988); Fare v. Michael] C., 442 U.S.
707 (1979) (“rigid rule that an accused's
request for ar attorney is per se an
invocation of his fifth Amendment rights,
requiring that all interrogation cease").
The trial court, by placing almost
exclusive reliance on evidence that the
State, through Sheriff McDowell, had finally
obtained a waiver of Miranda rights, failed
to give constitutionally adequate
consideration to the facts and circumstances
45
surrounding the alleged waiver. yet these
are precisely the circumstances which
demonstrate improper State action in this
instance. This Court, recognizing the
Significance of prestatement police tactics,
has stated:
(wj)hatever the testimony of the
authorities as to waiver of rights by an
accused, the fact of lengthy interrogation
before a statement is made is strong
evidence that the accused did not waive
his rights. In these circumstances the
fact that the individual eventually made a
statement is consistent with the
conclusion that the compelling influence
of the interrogation finally forced him to
do so... . Moreover, any evidence that
the accused was threatened, tricked or
cajoled into a waiver will, of course,
show that the defendant did not
voluntarily waive his privilege.
Miranda v. Arizona, 384 U.S. at 476.
This Court has repeatedly denounced
in subsequent decisions tactics similar to
those used by the State in this instance.
Moran v. Burbine, 475 U.S. 412 (1986) (waiver
of Miranda rights must be “voluntary in the
sense that it was the product of a free 1d
deliberate choice rather than intimidation,
coercion, or deception"); Berkemer v.
46
McCarty, 468 U.S. 420 (1984) ("The purposes
of the safeguards prescribed by Miranda are
to ensure that the police do not coerce or
trick captive suspects into confessing.") ;
see generally Miranda, 384 U.S. at 448-456.
Here, the State was unable to obtain
Petitioner's waiver and confession for a
period of twenty-four hours after he was
taken into custody. During his initial
custodial interrogation, he asserted his
rights to remain silent and to counsel,
resisting the State's efforts to obtain from
him a signed waiver of rights form.
Unsuccessful in their first night of efforts,
the State switched to more deceptive tactics
of custodial interrogation in an attempt to
obtain a waiver. The State's use of Shirley
Franklin, who was placed in handcuffs despite
not being under arrest, in an attempt to
obtain Petitioner’s confession is the
functional equivalent of custodial
interrogation. In Rhode Island v. Innis, 446
0.8. 289 (1980), this Court stated the test
47
+
A
an
Mors er wa é ind ita es
were f na aithough a further rere é
ive e to the State existed due +t ts
4liure to produce any witnesse t é t
‘c > oo e} ' “4 Te Yr Ww ) ly regard lig The + > sa
eq to extract the tatement ne
explained fai re by a party t ;
er es wil nas pe ir K wiliedde f
vent | 1 Gg! na [ ;
ference against the ip J t
ee Graves v. United States
893). Mere physical availabilit
r ‘ > the ppos Y +
Any factual claim that one ffice lid
iot Know of Petitioner's assertion of his
right to counsel moreover would be w :
merit. The state's knowledge regarding an
accused's assertion of the right to n
as well as the right to remain silent, is
imputed from one state officer to another.
Michigan v. Jackson, 475 U.S. 625, 34 (1986
("Sixth Amendment principles require that we
impute the State's knowledge from one state
actor to another."). See also Arizona v.
Roberson, 486 U.S. 675 (1988) (rule extended
to cover even subsequent interrogations
conducted by different officers conc rning a
separate offense).
®
‘?)
O
Cc
J
w oO
©
that negative inference "where the witness
has a relationship with the opposing party
‘that would in a pragmatic sense make his
testimony unavailable to the opposing party
regardless of physical availability.'"
United States v. Mahone, 537 F.2d 922, 926
as » p ‘ . 146
th Cir. 1976) (citations omitted).
Taken together, the actions by the
Stat should have compelled the Alabama
sOurts to conclude that Petitioner's waiver
iid not meet the test of voluntariness, which
this Court recently reiterated:
"Is the confession the product of an
essentially free and unconstrained
choice by its maker? If it is, if he
has willed to confess, it may be used
against him. If it is not, if his will
has been overborne and his capacity for
self-determination critically impaired,
the use of his confession cffends due
process."
Arizona v. Fulminante, _ U.S.
° The Court in Mahone found that althouc
the police officer whose absence gave rise t
the adverse inference was outside the
courtroom, he had a special relationship with
the prosecution, arising out of his interest
in seeing a conviction, such that he could
not be considered "equally available" to the
defense.
50
1
case.
Cc. The granting of certiorari in this
case would not be a mere academic
exercise since erroneous introduction
of the involuntary confessions caused
harm to petitioner's constitutional
rights.
This Court has most recently held in
Arizona v. Fulminante, U.S. >. hae
S.Ct. 1246 (1991), that the admission into
evidence of an involuntary confession is
subject to reversal if such evidence was in
any way harmful to defendant. Recognizing
the damning effect of a confession, this
Court stated:
A confession is like no other evidence.
Indeed, "the defendant's own confession is
probably the most probative and damaging
evidence that can be admitted against
him." (citations omitted) . . . While some
statements by defendant may concern
isolated aspects of the crime or may be
'’ Likewise, the statement alleged by
government investigator Larry Fowler to have
been made by Petitioner immediately before
Petitioner was to see his appointed counsel
for the first time (approximately three days
after he asserted his right to counsel) ways
improperly admitted. Such a statement, if
made at all, violated both his right to
counsel and his right to remain silent.
Michigan v. Mosley, 423 U.S. 96, 105-106
(1975).
52
ee
incriminating only when linked to other
evidence, a full confession in which the
defendant discloses the motive for and
means of the crime may tempt the jury to
rely upon that evidence alone in reaching
its decision.
Fulminante, 111 S. Ct. at 1257-1258. Given
the profound impact of a confession on the
jury, the State cannot claim that the
involuntary confessions allowed into evidence
were harmiess to Petitioner beyond a
reasonable doubt. See Chapman v. State of
California, 386 U.S. 18 (1967) (federal
constitutional error is harmless only if
proven beyond a reasonable doubt).
Indeed, but for the confession, the
State's case would have rested almost
exclusively on the testimony of Petitioner
estranged girlfriend, a convicted felon who
likely had a financial stake in the outcome
of the trial because of rewards offered to
solve the crime, and who the Sheriff's
Department had recommended for the reward in
writing after the trial. Such testimony
standing alone thus would be highly suspect,
as it should be, making the harm to
53
a a
Petitioner of the admission of his coerced
testimony severe. Thus, the granting of the
petition in this case will additionally
correct a wrong committed by the judicial
system of Alabama.
CONCLUSION
Michael Thompson respectfully
requests that his petition for writ of
certiorari be granted to review the important
federal questions raised by this petition.
The need to ensure that other criminal
defendants in Alabama cease to suffer from
the inherent wrong of grossly
undercompensated counsel and underfunded
defenses provides a compelling basis for the
granting of this petition. Moreover,
Petitioner submits that the facts underlying
this petition demonstrate that there is a
Clear need to provide further guidance to
courts throughout the United States as to the
State's burden of demonstrating the lack of
coercion throughout the custodial period,
54
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.