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.

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