# Petition for Writ of Certiorari — Thompson v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2810%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 502 U.S. 1030 ## Text 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 ———EEEEE——E—eEeE 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 ———————————eeeEeEeEeE——EeEEE 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2810%3A1. Public record. Not legal advice.