Respondents Brief — United States v. Gouveia
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FEB $ 1984
No. 83-128
\ or
ss eee OD EVAS
IN THE CLERK
Supreme Court of the United States
Ocroner Term, 1983
UNITED STATES OF AMERICA,
Petitioner,
Vs,
WILLIAM GOUVELA, ET AL,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPPALS
FOR THE NINTH CIRCUIT
BRIEF OF RESPONDENTS ROBERT E. MILLS
AND RICHARD RAYMOND PIERCE
Cnartes P, DiaMonp
1800 Century Park East
Los Angeles, California
90067
Telephone : (213) 553-6700
nw See A Counsel for Respondents
Robert E. Mills and
M. Rawpaut. Oprenxvkimer Pe pe ee aa TO
O'Meivexy & Myers
1800 Century Park Kast
Los Angeles, California
W067 >
Epwin S. Saut
15760 Ventura Boulevard
Eneino, California 91436
QUESTIONS PRESENTED
1. May the Government, consistent with the Sixth Amend-
ment guarantee of the right to counsel, commit a prison
inmate to virtual solitary confinement and, in the absence of
any demonstrable threat to the security of the institution,
hold him there indefinitely without a lawyer while it builds a
criminal case against him?
2. Did the denial of respondents’ right to counsel during
their prolonged isolation in administrative detention demon-
strably jeopardize their ability to mount a defense, justifying
the court of appeals’ dismissal of the charges against them?
**
TABLE OF CONTEFTS
QUESTIONS PRESENTED
TABLE OF AUTHORITIES
STATEMENT OF THE CASE
1. Respondents’ Eight-Month Isolation After the
Lompoc Murder and the District Court’s Dis-
missal Of Their Indictments
2. Respondents’ Trial
3. The Dismissal of the Indictments sist: the En Bane
Court of Appeals
SUMMARY OF ARGUMENT
ARGUMENT
I. In the Absence of Legitiraate Security Concerns,
an Inmate Taken into and Detained in Segregated
Custody Pending Indictment — No Less than a
Man Arrested and Detained Outside the Prison
Walls — Stands “Accused” of a Crime and is
Therefore etree le Entitled to the As-
sistance of Counsel .
A. For Purposes of the Sixth Amendment, De-
tention Imposed to Hold an Inmate to Answer
Impending Criminal ei Constitutes an
“Accusation”
1. Respondents’ Detention Was Not mini
to Ensure the Security of the Institution,
but Only to Hold Them to Answer Im-
pending Criminal Charges... ..........
Page
12
12
12
ot
2. The Solicitor General Is Wrong When He
Presumes a Security Basis for Respond-
ents’ Eight-Month Isolation in Adminis-
trative Detention
3. The Concepts of Arrest and Accusation
Must Apply to Inmates Detained to An-
swer Impending Criminal Charges if the
Sixth Amendment Is to Operate at All
Within the Walls of a Prison
B. Because the Prompt Appointment of a Lawyer
Is Essential to Assure a Fair Trial for an
Accused Inmate Confined in Administrative
Detention, the Court Below Properly Declined
to Suspend the — to Counsel Until Indict-
ment
1. The Absence of Counsel During RN
ents’ Eight-Month Confinement in Admin-
istrative Detention Denied Them the As-
sistance of Counsel to Prepare a Defense
2. Belatedly-Appointed Counsel for an In-
mate Long Held Incommunicado in Ad-
ministrative Detention Cannot Overcome
the Investigatory Obstacles and Other
Disadvantages that Result from Delay in
Commencing the Preparation of a Defense
Il. Because Respondents’ Prolonged, Uncounselled
Segregation Pending Indictment Significantly
Impaired Their Right to a Fair Trial, The Court
of Appeals Properly Dismissed the Charges
pO ERS See ee ee
17
19
21
=
A. The Courts Below Had Substantial Basis for
Concluding that Respondents’ Denial of Coun-
sel Significantly Impaired Their Attorneys’
Ability to Provide Effective Representation 39
B. This Court Should Not Discard the Morrison
Standard for a Test Requiring Proof of
Actual Prejudice
CONCLUSION
S &
—_Vv—
TABLE OF AUTHORITIES
Cases
Page(s)
Avery v. Alabama, 308 U.S. 444 (1940) 26
Barker v. Wingo, 407 U.S. 514 (1972) 41
Beavers v. Balkcom, 636 F.2d 114 (5th Cir. 1981) 27
Bono v. Sarbe, 450 F.Supp. 934 (E.D. Ill. 1978), modified,
620 F.2d 609 (7th Cir. 1980) 33
Brewer v. Williams, 430 U.S. 387 (1977) 24
Cervantes v. Walker, 589 F.2d 424 (9th Cir. 1978) 14
Chism v. Koehler, 527 F.2d 612 (6th Cir.), aff’g 392
F.Supp. 659 (W.D. Mich. 1975), cert. denied, 425 U.S.
944 (1976) °. 28, 46, 48
Clark v. Jago, 676 F.2d 1099 (6th Cir. 1982) 23
Cobb v. Aytch, 643 F.2d 946 (3d Cir. 1981) "99
Coleman v. Alabama, 399 U.S. 1 (1970) 22, 24, 26, 47
Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311
(1983) waka de ch abca wand wees Bada s\n 21
Cuyler v. Sullivan, 446 U.S. 335 (1980) 47
Davis v. Alabama, 596 F.2d 1214 (5th Cir. *1979), vacated
as moot, 446 U.S. 903 (1980) 27
Dickey v. Florida, 398 U.S. 30 (1970) oe 41
Dillard v. Pitchess, 399 F.Supp. 1225 (C.D. Cal. 1975) 45
Dillingham v. United States, 423 U.S. 64 (1935) ..._. 13
Estelle v. Smith, 451 U.S. 454 (1981) _............... &
Ewing v. Williams, 596 F.2d 391 (9th Cir. 1979) ...... 27
Ford v. Parratt, 638 F.2d 1115 (8th Cir.), vacated on
other grounds, 454 U.'S.934 (1981) ............ 27
a
Page(s)
Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978) 27
Geders v. United States, 425 U.S. 80 (1976) é ae
Gerstein v. Pugh, 420 U.S. 103 (1975) . 23
Gideon v. Wainwright, 372 U.S. 335 (1963) 47
Glasser v. United States, 315 U.S. 60 (1942) 47
Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972) 27
Goodwin v. Swenson, 287 F.Supp. 166 (W.D. Mo. 1968) 27
Hall v. Iowa, 705 F.2d 283 (8th Cir.), cert. denied, 104
S. Ct. 339 (1983) 23
Hamilton v. Alabama, 368 U.S. 52 (1961) 47
Hawk v. Olson, 326 U.S. 265 (1945) _. 26
Herring v. New York, 422 U.S. 853 (1975) 47
Hewitt v. Helms, 103 S. Ct. 864 (1983) , +04
Holloway v. Arkansas, 435 U.S. 475 (1978) 41, 47
Hooks v. Wainwright, 536 F.Supp. 1330 (M.D. Fla.
1982) ' ie ae
Hughes v. Rowe, 449 U.S. 5 (1980) vee
Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975) ...._.. 18
Kinney v. Lenon, 425 F.2d 209 (9th Cir. 1970) ........ 27
Kirby v. Illinois, 406 U.S. 682 (1972) eS Ors 23
Klopfer v. North Carolina, 386 U.S. 213 (1967) __. 19
Laaman v. Helgemoe, 437 F.Supp. 269 (D.N.H. 1977) .. 33
Landman v. Royster, 333 F.Supp. 621. (E.D. Va.
WE 2 es cee gi Santas bio aee ives eee 31, 33, 36
Lomaz v. Alabama, 629 F.2d 413 (5th Cir. 1980), cert.
Genten, 060 UH. 1608 (80RD =) oo le SAS 23
Mathis v. United States, 391 U.S. 1 (1968) ............ 20
— vii —
Page(s)
McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974) 27
Mills v. United States, 454 U.S. 902 (1981) 44
Miranda v. Arizona, 384 U.S. 436 (1966) 13
Missouri v. Green, 470 S.W.2d 565 (Mo. atin cert.
denied, 405 U.S. 1073 (1972) .. 31
Montanye v. Haymes, 427 U.S. 236 (1976) 14
Moore v. Arizona, 41s J.S. 25 (1973) 13
Moore v. Illinois, 434 U.S. 220 (1977) __. 24
Morris v. Slappy, 103 S. Ct. 1610 (1983) __. 47
Morrow v. Parratt, 574 F.2d 411 (8th Cir. 1978) 27
People v. Smith, 117 Mise.2d 737, 459 N.Y.S.2d 528 oven
Ct. 1983) ) 14
Powell v. Alabama, 287 U.S. 45 (1932) . 24
Procunier v. Martinez, 416 U.S. 396 (1974).......... 33
Pugh v. Locke, 406 F.Supp. 318 (M.D. Ala. 1976), aff’d
sub nom., Newman v. Alabama, 559 F.2d 283 (5th Cir.
1977), modified sub nom., Alabama v. Pugh, 438 U.S.
781 (1978) ..... BRS Se ee ce RE 31
Ross v. United States, 349-F.2d 210 (D.C. Cir. 1965) .. 42
Rummel v. Estelle, 590 F.2d 103 (5th Cir. 1979) ...... 27
Rutherford v. Pitchess, 457 F.Supp. 104 (C.D. Cal. 1978) 45
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ...... 2%
Simmons v. United States, 390 U.S. 377 (1968). -s-36
Smith v. Hooey, 393 U.S. 374 (1969) | 18, 19, 20,29
Sostre v. Rockefeller, 312 F.Supp. 863 (8.D.N.¥. 1970),
modified, 442 F.2d 178 (2nd Cir. 1971), cert. denied,
ITED 6 ics cecDiveneceecontenneee! 33
—vili— ©
Page(s)
State v. Overby, 249 Ga. 341, 290 S.E.2d 464 (1982) 14
Stevens v. Ralston, 674 F.2d 759 (8th Cir. 1982) 33
Stewart v. Gates, 450 F.Supp. 583 (C.D. Cal. ator
remanded, 618 F.2d 117 (9th Cir. 1980) Th BF 45
Strunk v. United States, 412 U.S. 434 (1973) 13
Thomas v. Wyrick, 535 F.2d 407 (8th Cir.), cert. denied,
429 U.S. 868 (1976) _.. 27
United States v. Ash, 413 U.S. 300 (1973) 24, 25, 28
United States v. Bailey, 444 U.S. 394 (1980) .... 33
United States v. Barket, 530 F.2d 189 (8th Cir. 1976) .. 49
United States v. Blevins, 593 F.2d 646 (5th Cir.1979) .. 17
United States v. Brooks, 670 F.2d 148 (11th Cir.), cert.
denied, 457 U.S. 1124 (1982) | Rls. + iy eas 17
United States v. Clardy, 540 F.2d 439 (9th Cir.), cert.
denied, 429 U. S. 963 (1976) . POMS a ee 17
United States v. Dolack, 484 F.2d 528 — Cir.
1978) .... oA Stee a ek _ 29, 46, 48
United States v. Duke, 527 F.2d 386 (5th Cir.), cert.
Gonkas, 466 GE SER CIR 6 A aE 16
United States ex rel. Burton v. Cuyler, 439 F.Supp. 1173
(E.D. Pa. 1977), aff’d, 582 F.2d 1278 (3d Cir 1978).. 23
United States ex rel. Robinson v. Zeiker, 468 F.2d 159
(2d Cir. 1972), cert. denied, 411 U.S. 939 (1973) 28
United States ex rel. Williams v. Twomey, 510 F.2d 634
(7th Cir.), cert. denied, 423 U.S. 876 (1975)... 37
United States v. Golub, 638 F.2d 185 (10th Cir. 1980) 27
United States .. Henry, 447 U.S. 264 (1980) st 26
United States v. Jackson, 506 Fai 881 (@th Cis. 1914),
cert. denied, 420 U.S. 964 (1975) ..........
ick
Page(s)
United States v. Lovasco, 431 U.S. 783 (1977) 48, 49
United States v. MacDonald, 456 U.S. 1 (1982) 13, 21
United States v. MacDonald, 531 F.2d 196 (4th Cir.
1976), rev'd on other grounds, 435 U.S. 850 (1978) 21
United States v. Mandujano, 425 U.S. 564 (1976) 24
United States v. Manetta, 551 F.2d 1352 (5th Cir. 1977) 17
United States v. Marion, 404 U.S. 307 (1971) 12, 13, 48, 49
United States v. Mays, 549 F.2d 670 (9th Cir. 1977) 42
United States v. McLemore, 447 F.Supp. 1229 (E.D.
Mich. 1978) 20
United States v. Mills, 704 F.2d 1553 (11th Cir. 1983) 17
United States v. Morrison, 518 F.Supp. 917 (S.D.N.Y.
1981) 31, 45, 49
United States v. Morrison, 449 U.S. 361 (1981) 10, 39, 46, 49
United States v. Porterfield, 624 F.2d 122 (10th Cir.
1980) 27
United States v. Smith, 464 F.2d 194 (10th Cir.), cert.
denied, 409 U.S. 1066 (1972) . 17
United States v. Solomon, 636 F.2d 863 (11th Cir. 1982) 49
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) 42
United States v. Wade, 388 U.S. 218 (1967) 24, 28
United States v. Wahrer, 319 F.Supp. 585 (D. Alaska
1970) . 42
United States v. Wilson, 357 F.Supp. 619 gpa
appeal dismissed, 492 F.2d 1345 (3d Cir. 1973), rev
on other grounds, 20 U8. 32 (198), fd mom, 1
F.2d 1400 (3d Cir. 1976)
49
United States v. Wood, 628 F.2d 554 (D.C. Cir. 1980) 48
Page(s)
Washington v. Strickland, 693 F.2d 1243 (5th Cir. 1982),
cert. granted, 103 S. Ct. 2451 (No. 82-1554, 1983) 26, 48
Wolff v. McDonnell, 418 U.S. 539 (1974) 31, 33
Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978) 27
Constitution, Statutes and Rules
U.S. Constitution:
Amend. V (Due process Clause) 13, 42, 46, 48, 49,
(Self-Incrimination Clause) 36, 37
Amend. VI (Assistance of Counsel Clause) passim
(Compulsory Process Clause) 42
(Speedy Trial Clause) 12, 13, 16, 17
19, 20, 21, 41
18 U.S.C. Section 4210(a) . 20
42 U.S.C. Section 1983 17
Federal Rules of Criminal Procedure
Rule 5(a) .... 19,22
RTA OE rere na pare
Rule 44(a) Vine deka < salt aketaten 19, 22
28 C.F.R.:
Section 541.13 7
Section 541.14(b) (1) 37
Section 541.20(d) 14
Section 541.22(a) ae 15
Section 541.22(a) (3) . 3
Section 541,22(a) (6) (i) 3, 15
Section 541.22(b) mF 2
Section 541.22(c) < abt, 7, 14
pe Re
Page(s)
Other Authorities
ABA Joint Committee on the Legal Status of Prisoners,
Standard No. 3.3, Commentary (Tent. Draft), re-
printed in 14 Am. Crim. L. Rev. 377, 454 (1977)
American Bar Association, Standards for Criminal
Justice,
The Defense Function, Vol. 1, Standard No. 4-4.1
(adopted Feb. 12, 1979)
Providing Defense Services, Vol. 1, Standard No. 5-5.1
(adopted Feb. 12, 1979)
Legal Status of Prisoners, Vol. 4, Standard No. 23-
3.3(b) (adopted Feb. 9, 1981)
W. Beaney, Right to Counsel in American Courts
(1955)
Bogan, Client Hhintnhibtsids A Key Problem in Correc-
tional Treatment, 39 Fed. Probation 20 (1975)
L. Bowker, Prisoner Subcultures (1977)
L. Carroll, Hacks, Blacks and Cons (1974)
36
27
32
33
D. Clemmer, The Prison Community (1940) 31, 32
Cloward, “Social Control in the Prison,” in The Soctol-
ogy of Corrections 110 (1977)
Colson, “Toward an Understanding of Imprisonment
and Rehabilitation,” in Crime and the Responsible
Community 152 (1980)
Cressey & Krassowski, Inmate Organization end Anomie
in American Prisons and Soviet Labor Camps, 5 Soc.
Probs. 217 (1958)
Federal Bureau of Prisons Inmate latennation System,
Report No. 70.53 (“Report of Man Days”) (1983)
Report No. 71.02 (“Report of Commitments and Dis-
Ges) CN a Sleein i i bieonted
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Hyland, “Diagnosis: Extreme Alienation,” in Inside:
Prison American Style 46 (R. Minton, Jr. ed. 1971)
J. Irwin, Prison’ in Turmoil (1980) .................
32
32
eg ¢ 3 8 8
—_
— xii —
Page(s)
N. Leopold, Life Plus Ninety-Nine Years (1958) 32
Los Angeles Times, Dec. 19, 1983, Pt. V (Book Review)
at 22 31
Maguire, “Racism II,” in Inside: Prison American Style
84 (R. Minton, Jr. ed. 1971) 32
Miller, Taking The Rule of Law To Prisons, 64 A.B.A.J.
990 (1978) 19
Morris, “The Sociology of the Prison,” in Criminology
in Transition 69 (1965) 33
National Conference of Commissioners on Uniform
State Laws, Model Sentencing and Corrections Act
§ 4-511, 10 U.L.A. 316 (Supp. 1983) 19
National Sheriffs’ Association, Inmates’ Legal Rights
(1974) 19
Note, An Historical Argument for the Right to Counsel
during Police Interrogation, 73 Yale L.J. 1000 (1964) 26
The Prison (D. Cressey ed. 1966) 31
Schaefer, Federalism and State Criminal Procedure, 70
Harv. L. Rev. 1 (1956) 49
G. M. Sykes, The Society of Captives: A Study of a
Maximum Security Prison (1958) 32
Sykes, Men, Merchants and Toughs: A Study of Reac-
tions To Imprisonment, 4 Soc. Probs. 130 (1956) 33, 34
Sykes and Messinger, “The Inmate Social System,” in
The Sociology of Corrections 97 (1977)
Theoretical Studies in the Social Organization of the
Prison (R. Cloward ed. 1960) )
U.S. Dep’t of Justice, Bureau of Justice Statistics, Pris-
oners In State and Federal Institutions on December
31, 1981 (March 1983) | Mi
U.S. Dep’t of Justice, Federal Prison Syciem, Program
Statement No. 5507.1 (Feb. 19, 1968) .
D. Ward & G. Kassenbaum, Women’s Polini Sex pe
pees Bree, CaN oc cas edie pees
V. Williams & M. Fish, Convicts, Codes and Contraband
GLENS BREA Ea is AR gate ee ees Siete
32
31
S$ 8
8 8
IN THE
Supreme Court of the GQnited States
Octoser Term, 1983
No. 83-128
UNITED STATES OF AMERICA,
Petitioner,
vs.
WILLIAM GOUVEIA, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF OF RESPONDENTS ROBERT E. MILLS
AND RICHARD RAYMOND PIERCE
STATEMENT OF THE CASE
This case raises the question of whether a federal inmate
suspected of committing a prison crime, who poses no con-
tinuing threat to the security of the institution but is detained
and isolated in administrative segregation pending indict-
ment, is constitutionally entitled to the assistance of counsel
prior to the completion of the Government’s trial preparation
and the return of formal charges. As did the district court,
the en banc court of appeals answered this question in the
affirmative.
1. Respondents’ Eight-Month Isolation After the Lompoc
Murder and the District Court’s Dismissal Of Their Indict-
ments. Thomas Hall was murdered at the Lompoc Correctional
Institution on August 22, 1979. Within hours of the crime,
respondents were forceably removed from their unit and
isolated from the rest of the prison population (Tr. 445-46)."
1 “Tr.” signifies the transcript in this case; “Pet. App.” signifies the Appen-
dices to the Petition; “Pet. Brief” signifies the brief for the United States;
“JA” signifies the Joint Appendix; Ag ccc br oe gets upatiee-
record (which is accompanied by the appropriate docket entry number);
and “Ex.” signifies an exhibit in this case.
ne” eam
Taken to a prison office for interrogation, respondents were
advised of their right to appointed counsel, but when they
asked to consult with attorneys, their requests were summarily
denied (JA 128). Following this initial investigation, the
authorities concluded that respondents “were suspects in the
homicide” (Tr. 446), and respondents were transferred to the
prison’s Administrative Detention Unit (“ADU”), from which
they would not emerge until April 21, 1980, when they
appeared for arraignment in Los Angeles to plead to a murder
indictment that had been returned the previous month (Pet.
App. 42a-44a).
The Government could offer no evidence to the district court
that respondents were detained in ADU for security reasons.
The detention orders prepared on the evening of the murder
committed respondents to ADU because they were “pending
investigation of a violation of institution regulations” and
were “pending investigation or trial for a criminal act” (JA
138, 139). Pursuant to Bureau of Prisons regulations, the
printed forms required an explanation of why respondents’
continued presence in the general population would jeopardize
the security of the institution (28 C.F.R. § 541.22(b)), but the
prison’s Correctional Supervisor made no reference to secu-
rity concerns other than to note that respondents were “pend-
ing investigation” (JA 138, 139). Indeed, as the Government
conceded below, the sole reason for respondents’ continued
detention after completion of the prison’s investigation on
September 13, 1979, was the ongoing criminal investigation
and impending indictment (Pet. App. 42a-43a).?
Throughout their eight-month commitment in ADU, re-
spondents were confined to three-by-five foot cells for all but
thirty minutes of each day, with occasional respites in desig-
dum in opposition to that motion (JA 156-66), or its argument to the district
court (JA 170-80). Further, eer eee ean
pa roms vinpacery th tog district court, it took no exception to the deter-
mes
nated areas of the prison’s visiting room. Locked in a prison
within a prison, they remained virtually isolated from the en-
tire inmate population. Without funds to hire one, they could
not speak to an attorney. They could not contact inmate or
staff witnesses. They could not discuss their case with anyone
other than prison personnel and FBI investigators. Thus,
although almost immediately informed by prison officials that
they would eventually be indicated and tried for the Hall slay-
ing, for eight critical months respondents were deprived of
any opportunity to prepare to defend themselves against this
charge of first degree murder (Pet. App. 44a).*
Pursuant to Bureau of Prisons regulations, disciplinary
hearings were conducted in September of 1979. Based on evi-
dence consisting only of undisclosed “confidential informa-
tion,” respondents were charged with the Hall murder (JA
136-37). Respondents denied the charges. They again re-
quested and again were denied the assistance of counsel or,
for that matter, the assistance of any neutral person to act
on their behalf (JA 130). At the conclusion of those hearings,
which ended 22 days after respondents’ commitment to ADU,
prison authorities stripped respondents of all of their accrued
good time, and the prison’s internal investigation and disci-
plinary proceedings were closed (JA 137).*
Nonetheless, with the knowledge of the FBI agents in
charge of the criminal investigation, respondents remained in
ADU — ostensibly pursuant to regulations which authorized
open-ended detention of “pretrial inmates” (see 28 C.F.R.
§ 541.22(a)(3) & (6)(i)). In the meantime, the FBI and fed-
eral prosecutors pursued criminal proceedings at a leisurely
pace even though, as the Government conceded below, had re-
spondents been at-large on the evening of the murder, they
a
and provided with lawyers (JA 171; Pet. App. 46a). Re-
spondents, of course, were securely confined and isolated in
ADU, and the Government was thus under no pressure to tie
up the loose ends of its investigation in a timely manner. In-
deed, it did not present its case to a grand jury for another
seven months — four months after it completed its forensic
analyses, five months after it secured the cooperation of vari-
ous inmate witnesses, and six months after it identified and
debriefed the prison employees on whose testimony it ex-
pected to rely (JA 147-48; Pet. App. 46a).
Respondents were finally arraigned and provided lawyers
on April 21, 1980. Because of the belated appointment of their
counsel and respondents’ inability to investigate on their own
while in ADU, the district court took an unusually active role
in supervising discovery in an attempt to assure respondents
a fair trial (see JA 176). In the court’s opinion, however, even
the benefits of the most liberal discovery — which it noted the
Government strenuously resisted (id.) —could not over-
come the prejudice resulting from respondents’ eight-month
isolation without appointed representation. The district court
dismissed the indictments, having concluded, as expressly
stated in its findings, that respondents’ lack of representation
while in ADU had unalterably impaired their ability to mount
a defense (Pet. App. 46a-47a, 49a).
2. Respondents’ Trial. For the reasons summarized in the
Solicitor General’s brief, the district court’s order of dismissal
was overturned on appeal, and the case remanded for trial.
The question of respondents’ guilt or innocence was hardly
clear-cut during that month-long proceeding. Even the Gov-
ernment’'s forensic evidence, mentioned only in passing by the
Solicitor General, raised substantial doubt about respondents’
involvement in the murder. For example, FBI and defense
criminologists agreed that hair samples extracted from stock-
ing masks admittedly worn by the assailants could not have
come from either respondent (Tr. 392-93, 397-400). Perhaps
most importantly, the prosecution's sole percipient witness and
pathologist alike testified ae the wp was — by
someone stabbing with his right hand (Tr Po ae and yet
the trial evidenee unquestionably pot both a he also
ey VER
Pierce, who was alleged to have wielded the knife, was left-
handed (Tr. 1113-16, 1120-23, 1129).
The prosecution’s identification testimony was also riddled
with inconsistency. The Government placed considerable re-
liance on Clifford Wilson, a prison guard who purportedly saw
respondent Mills flee from the murder scene. Yet, the prosecu-
tion’s principal inmate witness testified before the grand jury
that he discovered Guard Wilson asleen at his desk moments
after the murder (Tr. 128-29). The prosecution’s sole eyewit-
ness to the assault, inmate Gary Mellon, was contradicted by
four other inmates, including one called by the prosecution
(Tr. 154-55, 992, 1029-30, 1084-50). All four were present at the
scene and each testified that the assailants’ faces were masked
during the murder. Further, Mellon testified for the prosecu-
tion only after striking a bargain which he virtually acknowl-
edged at trial had earned him a release after serving only
three years of a thirty-year sentence (Tr. 135).°
Although handicapped by their lack of representation dur-
ing the eight months following the Hall murder, respondents
were able to offer the testimony of a number of inmates who,
with varying degrees of certainty, placed respondents in the
prison dining hall at the time the institution was “locked-
down” in the aftermath of the murder (e.g., Tr. 756-58, 777-79,
801-04, 819-24, 849-51, 1135-37). Three other inmates testified
that they were seated adjacent to the only entrance to the
murder-scene unit but could not recall either respondent enter-
ing or leaving the unit at the time of the murder (Tr. 682, 708-
09, 728).
tf
it
Ht
th
|
i
asl hie
More compelling, however, was evidence concerning the
victim. According to prison records, Tom Hall was an un-
settled, young convict who was active in the prison’s drug
commerce. Hall had experienced recurrent problems getting
along with his fellow prisoners (Tr. 165-67, 1097, 1108-09,
1451). In fact, months before his alleged dispute with Mills
over a debt (and prior to respondent Pierce’s arrival at Lom-
poc), Hall had been labeled a “snitch” (Tr. 1086, 1109) and un-
identified inmates firebombed his cell. Soon thereafter, Hall
requested that he be placed in ADU for his own protection
(Tr. 1086-88, 1092, 1102-03). Writing to his parents from ADU
in April 1979, four months before his death, Hall penned a
farewell letter and asked that it be read “at my funeral” (Ex.
105B; Tr. 1104-05).
3. The Dismissal of the Indictments by the En Banc Court
of Appeals. The issue as defined by the en bane court of ap-
peals was “whether, under any circumstances, a federal pris-
oner suspected of committing a crime while in prison and
placed in administrative detention is constitutionally entitled
to an attorney prior to indictment” (Pet. App. 2a). The court
began its analysis by observing that the right to counsel
attaches when “an attorney is necessary to preserve the
accused’s right to a fair trial or to ensure that the accused will
receive effective assistance of counsel at the trial itself” (id. at
6a). Under this standard, the court reasoned, open-ended de-
tention of an inmate-suspect in ADU compels the appointment
of counsel if the inmate is to be assured a fair trial. It noted
that “an inmate suspected of crime must overcome investiga-
tory obstacles even greater than those facing the prosecution,”
including the rapidly changing composition of the prison
population and the reluctance of inmates to become involved
(id. at 1la-12a). The court concluded that “early access to the
general prison population is critical to the suspect’s ability
to prepare and preserve a defense” and that prolonged isola-
tion without counsel invariably jeopardizes an inmate’s right
to a fair trial (id. at 12a).
The court of appeals next considered the more difficult
issue of whether an inmate isolated in ADU is an “accused”
for Sixth Amendment purposes and thus constitutionally
sont heal
entitled to the assistance of counsel. In analyzing this issue,
the court carefully defined the nature of ADU detention it
was considering. It noted that respondents had been confined
in ADU not as a method of discipline or “to defuse a poten-
tially explosive confrontation and to protect inmates from
harm” (Pet. App. 10a). Rather, the court correctly recog-
nized that it was dealing with administrative detention of
“an indeterminate period” imposed because of a “pending
[criminal] investigation or trial for a criminal act” where no
demonstrable security-related justifications existed apart
from respondents’ status as “suspects” (id. at 11a).
Noting that “whether a person stands accused can only be
determined from the totality of circumstances” (Pet. App.
8a), the court observed that respondents’ pretrial detention
served the same objectives that typically prompt an arrest
outside the prison walls. There was one crucial difference,
however : “[u] pon arrest a defendant must be arraigned ‘with-
out unnecessary delay’... [at which] point the accused is
guaranteed the assistance of counsel” (id. at 12a-13a), but
within the prison walls no such procedural guarantees operate.
The accused is already in the Government’s custody, and
unless the protection of the Sixth Amendment applies to
detainees before the completion of the Government’s trial
preparation and the inmate’s indictment, the prosecution can
freely suspend the inmate’s right to counsel indefinitely. The
court rejected this result as inconsistent with the guarantee
of counsel, and held that an inmate pretrial detainee, like an
arrestee, is entitled to an attorney upon showing that his
confinement in ADU is related to the impending criminal
charges and not to any legitimate security concerns of the
institution.®
Inasmuch as respondents had been isolated in ADU with-
out attorneys for periods of up to twenty months; solely
because they were the subjects of criminal investigations, the
court concluded that they had been denied their Sixth Amend-
* Relying on Bureau of Prisons regulations which, except in extraordinary
circumstances, limit investigatory and disciplinary segregation to 30 and 60
days, respectively (see 28 C.F.R. §§ 541.13 & 22(c)), the court confined
a agai maaie escent sh amet catch ¢- lp
hig Sikes
ment right to counsel; and it turned its attention to the
appropriateness of dismissal as a remedy. After reviewing
the record in the Mills case, the court agreed with the district
court’s conclusion that, because of their belated appointment,
respondents’ attorneys simply could not provide their clients
with effective assistance of counsel (Pet. App. 21a). Although
the court flatly rejected the Government’s contention that
respondents’ showing of prejudice had been inadequate, it
also suggested that in cases such as this prejudice may be
presumed “because ordinarily it will be impossible adequately
either to prove or refute its existence” (id. at 22a). The court
found the presumption unnecessary in this case both because
of “evidence that ‘substantial prejudice’ may have occurred”
and because of the Government’s failure to refute respondents’
showing of the likelihood of prejudice (id. at 22a).
SUMMARY OF ARGUMENT
The Solicitor General seeks reversal of a rule that was not
adopted below. The court of appeals did not construe the
Sixth Amendment to require the “appointment of counsel for
indigent inmates held in administrative detention for more
than 90 days pending criminal investigation” (Pet. Brief 12,
15, 19, 33). Its decision was far more narrow. Recognizing
that segregated detention plays an important role in the
administration of a prison, it simply held that when an inmate
subject to a criminal investigation is detained beyond ninety
days in segregated custody pending indictment for no apparent
security-related reason, he should be afforded an opportunity
to establish that his detention is the rest! of a decision to
hold him to answer impending criminal charges. An indigent
inmate who carries this burden, the court reasoned, is as
much “accused” as one arrested outside the prison walls, and
he is constitutionally entitled to appointed counsel or, alter-
natively, to be released from segregated custody so that he
may take steps to preserve his defense.
1, When used as a method of disciplining inmates, of
providing a “cooling-down” period following a breach of
prison order, or of ensuring the security of the institution or
the safety of other inmates from demonstrable harm, adminis-
trative detention is without constitutional significance. On
ht aah
the vther hand, when as here administrative detention is
imposed for no security reason but instead solely to hold an
inmate to answer impending criminal charges, it becomes
the functional equivalent of an arrest and pretrial detention.
As such, the imposition of administrative detention is “accusa-
tory,” triggering constitutional safeguards equivalent to those
that inure when a man outside the prison walls is forcibly
removed to the station house and detained to answer criminal
charges that the authorities are preparing to bring.
In viewing respondents’ segregation as resulting from secu-
rity concerns, the Solicitor General grievously misapprehends
the records in this case. Respondents were detained in ADU
not because they threatened the security or good order of the
Lompoc Penitentiary. Nor were they held in virtual solitary
confinement for periods of up to nineteen months because of
any particularized or demonstrable concern for the safety or
well-being of other inmates. Rather, as the district court ex-
pressly found, and as the court of appeals confirmed, respond-
ents were continued in ADU following a thirty-day prison
investigatory period solely because they were the targets of
impending criminal indictments.
Thus, the pivotal issue is whether, consistent with the Sixth
Amendment guarantee of counsel, the Government may com-
mit an “accused” prison inmate to virtual solitary confine-
ment and, in the absence of any demonstrable threat to the
security of the institution, hold him there indefinitely without
a lawyer while it builds a case against him. In arguing that it
may, the Solicitor General urges acceptance of a principle
foreign to our system of criminal justice: that in prison as
elsewhere, an individual may be detained in isolation without
counsel for as long as the Government takes to prepare its
case, hand down an indictment or other formal charge, and
thus commence formal, adversary proceedings. This Court
has never subscribed to that view. Rather, it has held that the
right to counsel attaches during those pretrial phases of a
criminal proceeding whenever the absence of counsel would
jeopardize the accused’s fundamental right to a fair trial.
It cannot seriously be debated that the absence of counsel
jeopardizes the fundamental right to a fair trial when an ac-
cused inmate is held incommunicado for months and years
Seine NNN cit
without any realistic opportunity of preparing his own de-
fense to a charge the Government alone has the ability to in-
vestigate. As borne out by the records in this case, in the
unique setting of a correctional institution, protracted delay
in the appointment of counsel constitutes a denial of effective
representation altogether. Unlike the world outside, the prison
population is exceedingly transitory, and inmates know one
another not by legal names but by prison sobriquets. Unless
promptly located and debriefed, an inmate released from cus-
tody or transferred to another institution is frequently irre-
trievably lost as a defense witness. The irremedial effects of
delay in appointing connsel are compounded by an inmate code
of ethics which, as a rule, encourages inmates to deny knowl-
edge of relevant information and to fabricate stories to
distance themselves from the events in question when inter-
rogated by prosecution investigators. As a result, when for
prolonged periods of time only the Government has the ability
to investigate, exculpatory witnesses are disabled or neutral-
ized by virtue of their prior inconsistent statements and the
fear of potential criminal prosecution for perjury or the giv-
ing of a false statement. These and similar inequities have
led the drafters of two model codes, including the American
Bar Association, to reach the same conclusion as the court of
appeals and to limit to ninety days the time an inmate-suspect
may be confined in investigatory segregation without constitu-
tional guarantees attaching.
2. This Court has held that when an accused has been de-
nied access to counsel, dismissal of the charges against him is
appropriate if the constitutional violation has resulted in “de-
monstrable prejudice, or [a] substantial threat thereof.”
United States v. Morrison, 449 U.S, 361, 365 (1981). On the
basis of the record before them there was more thai a sub-
stantial basis for the court of appeals and district court to
conclude as they did that “the opportunity for [respondents’]
counsel to prepare the defense that is constitutionally guar-
anteed all persons accused of crime did not exist” (Pet. App.
21a). In light of the protracted delay in the appointment of
counsel during a period when the Government alone was able
aggressively to build its case, both courts ruled that respond-
ents “simply did not have the opportunity to make the kind of
a
investigation that the government made” (id. at 47a), an in-
vestigation which was necessary to ensure a fair trial. Poten-
tial defense witnesses could no longer recall the events with
adequate clarity, or they had long since disappeared after be-
ing transferred or released from custody altogether. Physical
evidence had either deteriorated or been misplaced. Respond-
ents found themselves entirely foreclosed from effectively in-
vestigating the source of earlier threats on the life of Thomas
Hall, or the identity of those responsible for a prior attempt
on his life. Exculpatory witnesses, who, during the months
and years that respondents remained incommunicado, had
been forced to submit to FBI interviews and who often fabri-
cated stories so as not to become involved, chose not to testify
for fear of the consequences or were discredited at trial by
their prior inconsistent statements.
In urging that these considerations were inadequate to sat-
isfy the Morrison test of “substantial prejudice or [a] demon-
strable threat thereof,” the Solicitor General sub silentio asks
this Court to overturn Morrison and to engraft onto the Sixth
Amendment the “actual prejudice standard” applied to the
evaluation of claims of undue preaccusation delay under the
Fifth Amendment. Even were this Court to put aside the find-
ings of the district court and court of appeals that the proof
in this case established actual prejudice, the Fifth Amend-
ment standard is singularly inappropriate for safeguarding
the right to counsel under Sixth. Unlike the target of the de-
layed indictment, who is free to conduct his own investigation
and thus capable of subsequently proving actual prejudice, re-
spondents were disabled by the Government from initiating
their own defense and denied their right to be assisted by
counsel in that endeavor. More importantly, the “actual prej-
udice” test — which in modern federal jurisprudence few have
been capable of satisfying — is far too inadequate a safeguard
for the protection of the right to counsel, the cornerstone of
our adversarial system of criminal justice.
ARGUMENT
I. IN THE ABSENCE OF LEGITIMATE SECURITY CON.
CERNS, AN INMATE TAKEN INTO AND DETAINED
IN SEGREGATED CUSTODY PENDING INDICTMENT
—NO LESS THAN A MAN ARRESTED AND DE.-
TAINED OUTSIDE THE PRISON WALLS — STANDS
“ACCUSED” OF A CRIME AND IS THEREFORE CON.
STITUTIONALLY ENTITLED TO THE ASSISTANCE
OF COUNSEL
The Sixth Amendment provides that “[iJn all criminal
prosecutions, the accused shall enjoy the right... to have the
Assistance of Counsel for his defence.” Because respondents
were detained and isolated in ADU to answer impending
criminal charges, by that detention the Government rendered
them accused in the course of a criminal prosecution. By
delaying the appointment of counsel for up to twenty months,
the Government deprived them of a right due all accused per-
sons, namely, to have the effective assistance of counsel for
their defense.
A. For Purposes of the Sixth Amendment, Detention Im-
posed to Hold an Inmate to Answer Impending Criminal
Charges Constitutes an “Accusation”
By its terms, the Sixth Amendment guarantees an “accused”
in a “criminal prosecution” the assistance of counsel. Address-
ing the companion Sixth Amendment right to a speedy trial,
this Court has repeatedly construed the term “accused” to
encompass persons who have been deprived of their freedom
in any significant degree because the Government suspects
them of criminal conduct. Thus, in United States v. Marion,
404 U.S. 307 (1971), after noting that “the [Sixth] Amend-
ment is activated only when a criminal prosecution has begun
and extends only to those persons who have been ‘accused’ in
the course of that prosecution” (id. at 313), the Court held
that the Government renders one an “accused” by “either a
formal indictment or information or else the actual restraints
imposed by arrest and holding to answer a criminal charge”
(id. at 320). Although declining “to extend the reach of the
amendment to the period prior to arrest,” the Court explained
vay et
that “accusation” within the meaning of the Sixth Amendment
“need not await indictment, information, or other formal
charge” (id, at 321) (emphasis added)."
Because there is no gainsaying that Sixth Amendment
principles operate equally within the prison walls, see Moore
v. Arizona, 414 U.S. 25, 27 (1973); Strunk v. United States,
412 U.S, 434, 437-38 (1973), Smith v. Hooey, 393 U.S. 374, 378
(1969), the courts below were manifestly justified in conclud-
ing that respondents’ prolonged detention in segregated
custody was tantamount to an “arrest” and, for purposes of
the Sixth Amendment, an “accusation” in the course of “a
criminal prosecution” (see Pet. App. lla-12a, 47a-48a).*
7 The Solicitor General focuses on the language in Marion that speedy trial
rights accrue upon “arrest and holding to answer a criminal charge,” and
apparently suggests that an arrest does not constitute an accusation until the
return of some formal process to which the accused musi respond (Pet.
Brief 30). But as is evident from the discussion in Marion, the Court
referred to “holding to answer a criminal charge” only to contrast pretrial
detention with the situation in which a suspect is briefly detained but then
unconditionally released. See 404 U.S. at 321 & n.12. Further, any
ambiguity in Marion as to what constitutes an accusation was resolved by
Dillingham v. United States, 423 U.S. 64 (1975), a case in which the court
of appeals had discounted for speedy trial purposes the period between
arrest and the return of charges. The Court reversed. Noting that one is not
accused during the Government's investigatory stage, the Court wrote: “In
contrast, the Government constituted petitioner an ‘accused’ when it arrested
him and thereby commenced its prosecution of him” (id. at 65). See also
United States v. MacDonald, 456 U.S. 1, 7 (1982) (“In addition to the
period after indictment, the period between arrest and indictment must be
considered in evaluating a Speedy Trial Clause claim.”) In any event, Marion
and Dillingham did no more than reaffirm what the Court had earlier held
in Miranda v. Arizona, 384 U.S. 436, 477 (1966), namely, that an arrest
marks the “point that our system of criminal proceedings commences.”
* The court of appeals properly veiwed its decision as consistent with
Hewitt v. Helms, 103 S. Ct. 864 (1983), which held that when a state
delimits the circumstances under which administrative detention may be
imposed, as has the Federal Government, an inmate is entitled to a hearing
in connection with his confinement (see Pet. App. 17a-i8a). But even in
the absence of regulations limiting the use of ADU, Hewitt would not dictate
a contrary result here. Hewitt considered principally the question whether
confinement in administrative detention implicates “an interest independently
protected by the Due Process Clause” 103 S. Ct. at 870. The issue here,
unlike in Hewitt, is not the right to be free of administrative detention under
the Fifth Amendment, but whether confinement under the specific facts of
this case gives rise to a right to counsel under the Sixth. Thus, Hewitt does
not alter the fact that apart from procedural due process considerations,
(Footnote continued on next page)
sind ill cio
Respondents were made to suffer significant restraints on their
freedom over and above their normal conditions of confine-
ment, conditions which would have allowed them to investigate
the charges against them. Despite Bureau of Prison regula-
tions which prescribe that administrative detention “be used
only for short periods of time,” 28 C.F.R. § 541.22(¢), respond-
ents were held for months and years in virtual solitary con-
finement, isolated even from fellow administrative detainees
for nearly twenty-four hours a day.® More importantly,
respondents were held in ADU to answer impending criminal
charges.
1. Respondents’ Detention Was Not Imposed to Ensure the
Security of the Institution, but Only to Hold Them to Answer
Impending Criminal Charges. With the possible exception of
the initial twenty-two days, respondents’ confinement in
administrative detention reflected solely a decison to hold
them to answer impending criminal indictments. As noted
before, respondents were placed in ADU pending the com-
pletion of the prison’s disciplinary investigation and “pending
investigation or trial for a criminal act” (JA 138, 139). Yet,
the internal investigation and disciplinary proceedings ter-
minated on September 13, 1979 (id. at 137), more than seven
months before respondents were to emerge from ADU.
Indeed, in the proceedings below the Government offered no
(Footnote continued from previous page)
prison authorities may not impose more restrictive conditions of confinement
oblivious to the constitutional rights thereby implicated. See Cervantes v.
Walker, 589 F.2d 424 (9th Cir. 1978); State v. Overby, 249 Ga. 341, 290
it
is “within the sentence imposed upon him and is not otherwise violative of
the Constitution”) (emphasis added ).
® The Solicitor General belittles the dramatic transformation in respondents’
conditions of custody and status within the institution when he says that
detainees are entitled to the same privileges as prisoners in the general popu-
lation (Pet. Brief 15). But the regulations provide for comparable privileges
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explanation for respondents’ continued detention other than
the impending criminal indictments, and ultimately, it con-
ceded that respondents’ isolation was attributable to the
ongoing criminal investigation and nothing else.’®
The Solicitor General thus seeks to recast the records in
this case when he urges that respondents’ prolonged detention
resulted merely from the Warden’s legitimate judgment that
their confinement was necessary to maintain order in the
institution and to protect other inmates from harm. It is un-
doubtedly true that in particular cases the segregation of an
inmate pending investigation may be necessary to “maintain
prison security and to assure the safety of prison staff and
other inmates, including potential witnesses” (Pet. Brief 25).
However, there is absolutely no evidence in the record to
establish, as the Government now claims, that such concerns
“underlay the placement of respondents in administrative
detention” (id. at 16). Further, no credible claim can be made
in this case that respondents’ eight-month separation from
the general prison population was necessary to protect poten-
tial inmate prosecution witnesses. With the exception of one
inmate who demanded a transfer as a prerequisite for even
speaking with the FBI, all of the inmates on whose testimony
the Government expected to rely at trial had been identified
and debriefed within the first fifty-seven days of respondents’
detention (Pet. App. 46a; JA 148), and arrangements were
made to transfer them to other institutions (JA 145).
'™ See supra, at 2 & note 2. In no fewer than five places, the Solicitor
General quotes or paraphrases the language of 28 C.F.R. § 541.22(a), pur-
portedly requiring a finding before committing an inmate to ADU that the
inmate's “continued presence in the general population poses a serious threat
to” the prison population or the security of the institution. Repetition, how-
ever, does mot serve to establish a security basis for respondents’ detention
who were labelled security risks solely by preprinted language in a detention
order and solely because they were “pending investigation” (A 138, 139).
|
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for the additional reason that he was about to be
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The Solicitor General’s purported security justification for
respondents’ prolonged isolation in ADU also ignores the
district court’s finding that respondents’ “commitment to
ADU was neither a form of prison discipline nor an attempt
to ensure prison security” (Pet. App. 47a), a finding to which
the Government until now offered no objection (see JA 167-
69). The court of appeals similarly relied on the fact “that
pretrial detention was the only reason for the Mills’ defend-
ants prolonged stay in ADU” (Pet. App. 19a). In fact, the
en bane opinion was careful to avoid attaching Sixth Amend-
ment significance to detentions imposed for legitimate secu-
rity reasons:
“Importantly, appellants do not contend that temporary
isolation carries with it a right to appointed counsel when
the detention is imposed for security reasons. Nor could
they. Prison officials are charged with maintaining order
and ensuring the safety of inmates and prison employees.
Serious crimes compound the difficulty of this responsibility
in what is necessarily a volatile environment. Temporary
isolation, imposed to defuse a potentially explosive con-
frontation and to protect inmates from harm, is part of
the correctional process. It is unrelated to any subsequent
criminal prosecution” (Pet. App. 10a-1lla)."
11 That respondents were held in ADU in the absence of any iegitimate
security concerns distinguishes this case from the lower federal court decisions
cited by the Solicitor General for the rule that detention of an inmate triggers
no Sixth Amendment rights. For example, in United States v. Duke, 527
F.2d 386 (Sth Cir.), cert. denied, 426 U.S. 952 (1976), the issue was whether
imposition of 35 days of segregated confinement gave rise to the Sixth Amend-
ment right to a speedy trial when the detention was used “as a method of
disciplining or investigating inmates who break prison regulations, of protect-
ing certain inmates from members of the general population, and of providing
a general cooling-down period for inmates involved in events that could
disrupt the general population” (id. at 390). Although the Fifth Circuit
identified no speedy trial right in Duke, it made clear its view that administra-
tive detention is immune from Sixth Amendment consequences only to the
extent that it is “in no way related to or dependent on prosecution by the
federal government of an inmate for that same offense as a violation of federal
criminal law” (id.) (emphasis added). In contrast, respondents’ confinement
in administrative detention was not only related to a prosecution by the
Federal Government; that prosecution was the sole reason for its imposition
(or at least continuation) in the first place.
(Footnote continued on next page)
— fe
2. The Solicitor General Is Wrong When He Presumes A
Security Basis For Respondents’ Eight-Month Isolation In
Administrative Detention. Finding no support in the records
in this case, the Solicitor General suggests that inmates under
criminal investigation may presumptively be deemed security
risks because of the abstract possibility that they may impede
the Government’s investigation, and therefore, that their
placement and detention in ADU is without constitutional
significance (Pet. Brief 27-29). But the premise of that
argument is at odds with decisions of this Court. In Hughes
v. Rowe, 449 U.S. 5 (1980), an inmate of the Illinois State
Penitentiary sought relief under 42 U.S.C. § 1983 for his com-
mitment and detention in segregation without a prior hearing.
His complaint had been summarily dismissed below in part
because he was under criminal investigation at the time of his
detention for the same conduct which resulted in his segre-
gation. The dissenting opinion viewed this factor as suff-
cient reason to dispense with a hearing, noting that the bare
possibility of “alibi construction and witness intimidation”
would establish a conclusive basis for segregation (id. at 22).
A majority of the Court sharply disagreed. It ruled that if
the petitioner’s allegations were true he would have a valid
Section 1983 claim against his keepers, and in a per curiam
(Footnote continued from previous page )
A view identical to that in Duke was expressed in United States v. Smith,
464 F.2d 194, 196-97 (10th Cir.), cert. denied, 409 U.S. 1066 (1972), where
the court rejected a speedy trial claim of inmates confined in administrative
detention “for disciplinary reasons, for the protection of the victim, because
of their previous harassment of other inmates, and to prevent the possibility
of escape.” The court held: “Segregated confinement for institutional reasons
is not an arrest” (id. at 196-97) (emphasis added). Speedy trial claims were
also rejected in United States v. Mills, 704 F.2d 1553, 1556 (11th Cir. 1983)
and United States v. Clardy, 540 F.2d 439, 441 (9th Cir.), cert. denied, 429
U.S. 963 (1976), where the confinement was “disciplinary segregation,” and
in United States v. Manetta, 551 F.2d 1352, 1354 (Sth Cir. 1977) where, the
court noted, administrative detention was imposed for reasons not appreciably
different than in Duke. The only decision conceivably intimating a contrary
view is United States v. Blevins, 593 F.2d 646 (Sth Cir. 1979), where the
defendant claimed he was “placed in administrative segregation pending
institution of criminal proceedings.” The decision is unclear, however, as to
whether prison authorities had independent reasons for imposing the deten-
tion. See id. at 647 n.3. Cf. United States v. Brooks, 670 F.2d 148, 151 (11th
Cir.), cert. denied, 457 U.S. 1124 (1982) (declining to reach the issue of
whether placement “in disciplinary segregation constitutes an arrest for
Speedy Trial Act purposes”).
re a
opinion it condemned the notion that all inmate-suspects may
be presumed to be security risks:
“The dissent also speculates that inmates suspected of
violations of prison regulations, if allowed to remain in the
general prison population pending disciplinary proceed-
ings, will fabricate alibi defenses and intimidate potential
witnesses. [citations omitted]. This danger would appar-
ently justify automatic investigative segregation of all
inmate suspects. ... While investigative concerns might,
in particular cases, justify prehearing segregation, nothing
in the present record suggests that these concerns were at
work in this case.” 7d. at 13-14n.12."
Further, the Government’s presumption of dangerousness
has been dismissed by the drafters of two model codes, who
have wrestled with the legitimacy and fairness of isolating an
inmate who has become the subject of a criminal investigation
because of conduct committed at the institution. Both the
American Bar Association and the National Conference of
Commissioners on Uniform State Laws have rejected open-
ended investigatory detention as being inimical to the inter-
ests of both the inmate and the institution. Instead, they advo-
cate a prompt determination of whether an inmate is to be
prosecuted and believe, as did the court of appeals, that inves-
tigatory preindictment segregation should be limited to ninety
days. Beyond that period, administrative confinement may
continue under their standards only if the prosecution obtains
an indictment or files an information, at which time Sixth
Amendment guarantees plainly attach.”
12 See Kelly v. Brewer, 525 F.2d 394, 401 (8th Cir. 1975) (rejecting the
contention that an inmate's conviction for murdering or attempting to
murder a staff member “ipso facto establishes, prima facie, if not conclu-
sively, that the inmate is a fit subject for administrative segregation for a
prolonged and indefinite period of time”). See also Hewitt v. Heims, 103
S. Ct. 864, 874 n.9 (1983) (although isolation of an inmate pending resolu-
tion of misconduct charges may be necessary in particular cases to preserve
the integrity of the prison investigation and disciplinary proceedings, periodic
reviews of the confinement must be made to ensure that its continuation is
justified); id. 881-82 (Stevens, J., dissenting) (“the mere notation on a
record, ‘there is an ongoing investigation,’ should not automatically validate
the continuation of solitary confinement”).
13 See 4 ABA Standards for Criminal Justice, Legal Status of Prisoners,
Standard No. 23-3.3(b) (adopted Feb. 9, 1981); National Conference of
(Footnote continued on next page)
bianca
When stripped of the Solicitor General’s unsupportable
security rationale, respondents’ detention in ADU following
the termination of prison disciplinary proceedings bears all
the trappings of an arrest and accusation outside the prison
walls. Indeed, the court of appeals’ unassailable analogy to a
conventional arrest and detention was conceded by the pros-
ecutor in this case, who acknowledged to the district court
that had respondents been at-large shortly after the Hall
murder, he would have promptly ordered their arrest (JA
171). And, as he further conceded, once in custody respond-
ents would have been entitled under Federal Rules of Crim-
inal Procedure 5(a) and 44(a) to a prompt arraignment and
the appointment of counsel (id.).
3. The Concepts of Arrest and Accusation Must Apply to
Inmates Detained to Answer Impending Criminal Charges if
the Sixth Amendment Is to Operate at All Within the Walls
of a Prison. To say that respondents did not stand accused
of a crime by virtue of their eight-month detention in ADU,
and thus were not entitled to counsel, is to argue that the
Sixth Amendment stops at the prison gate, a proposition
repeatedly rejected by this Court. Indeed, in a closely analo-
gous setting, this Court held that a prison inmate suspected of
a crime, no less than a free man, is constitutionally entitled
to the procedural safeguards afforded by the Sixth Amend-
ment. See, e.g., Smith v. Hooey, 393 U.S. 374, 377 (1969).
(Footnote continued from previous page)
Commissioners on Uniform State Laws, Model Sentencing and Corrections
Act § 4-511, 10 U.L.A. 316 (Supp. 1983). See also National Sheriffs’ Ass'n,
Inmates’ Legal Rights 38 (1974) (inmate suspect's custody status should
be increased pending prosecution only “if it is believed that the inmate
presents a threat to himself or other inmates or is an escape risk"). See
generally, Miller, Taking The Rule of Law To Prisons, 64 A.B.A.J. 990, 992
(1978).
1* Speaking of the Speedy Trial Clause, the Court in Smith v. Hooey wrote:
“There can be no doubt that if the petitioner in the present case had
been at large for a six-year period following his indictment, and had
repeatedly demanded that he be brought to trial, the State would have
been under a constitutional duty to try him. Klopfer v. North Carolina,
[386 U.S. 213, 219 (1967)]. And Texas concedes that if during that
period he had been confined in a Texas prison for some other state offense,
(Footnote continued on next page)
enn Oh cal
More importantly, the position seemingly espoused by the
Solicitor General admits of no limitations. If the concepts
of’ arrest and accusation do not apply to those already in
custody under a lawful sentence, what prevents federal agents
from removing an inmate-suspect to the nearest pretrial
detention facility and holding him there indefinitely without
counsel until the Government is prepared to indict? The one
lower federal court to confront this situation categorically
rejected this contention. In United States v. McLemore,
447 F. Supp. 1229 (E.D. Mich. 1978), defendant had escaped
from a ederal treatment center to which he had been trans-
ferred in Yéjcipation of his release on parole. After being
apprehended ‘by FBI agents, who initially turned him over
to the local police, defendant was returned to the Federal
Correctional Institution at Milan, Michigan, where for nine
months he was confined in the prison’s detention unit pending
indictment for escape. Finding that defendant's detention
constituted an “accusation” for purposes of the Sixth Amend-
ment, the court rejected the claim that because the defendant
was at all times within “the legal custody and under the
control of the Attorney General,” see 18 U.S.C. § 4210(a),
his seizure and detention by that same authority could not
render him an “accused”:
“To follow the government's logic, one would have to
conclude that no prisoner or parolee would enjoy the pro-
tection of the Speedy Trial Clause before the bringing of
formal charges —a proposition which strikes this Court
as inconsistent with the spirit of Smith v. Hooey, 393 U.S.
374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969)... .” 447 F.Supp.
at 1236."*
(Footnote continued from previous page )
its obligation would have been no less. But the Texas Supreme Court has
held that because petitioner is, in fact, confined in a federal prison, the
State is totally absolved from any duty at all under the constitutional
guarantee. We cannot
Cf. Mathis v. United States, 391 U.S. 1 (1968) (inmate serving a sentence
for unrelated offense is nonetheless entitled to be free of uncounselled
custodial interrogation ).
15 Equally unavailing is the argument that the “[i}t is prison authorities, not
prosecutors or police, who make the decision to place an inmate in adminis-
trative detention and to retain him there” (Pet. Brief 24). For purposes of
(Footnote continued on next page)
= ee
In light of the nature of respondents’ preindictment deten-
tion and the reason for it, the court of appeals justifiably
concluded that respondent's prolonged confinement pending
the return of formal charges was the equivalent of an arrest
and rendered them “accused” in the course of a “criminal
prosecution.” The failure to appoint lawyers until arraign-
ment under these circumstances violated the second prong of
the Sixth Amendment test — namely, it denied respondents
the effective assistance of counsel for their defense and, con-
sequently, a fair trial.
B. Because the Prompt Appointment of a Lawyer Is Essen-
tial to Assure a Fair Trial for an Accused Inmate
Confined in Administrative Detention, the Court Below
Properly Declined to Suspend the Right to Counsel
Until Indictment
The Sixth Amendment provides that an “accused” is en-
titled “to have the Assistance of Counsel for his defence.”
Although conceding for purposes of argument that as
“aceuseds” respondents would have been entitled to the
“assistance of counsel,” the Solicitor General maintains that
the Government discharged its constitutional responsibility
to them when at their arraignments eight months later it
appointed lawyers to defend them. This view is premised on
( Footnote continued from previous page )
activating the Sixth Amendment, the agencies of the Federal Government
act as a single sovereign. As the Fourth Circuit explained in United States
v. MacDonald, 531 F.2d 196, 204 (4th Cir. 1976), rev'd on other grounds,
435 U.S. 850 (1978), in language seemingly approved by this Court, see id.,
456 US. 1, 10 n.11 (1982):
“For the purpose of determining whether the sixth amendment applies,
it is immaterial that, although the Army initially accused and arrested
MacDonald, the civilian arm of the government is currently prosecuting
him. The prosecution of the same charge — murder — that the Army
began was pursued by the Department of Justice. The sixth amendment,
we hold, secures an accused's rights to a speedy trial against oppressive
conduct by the government in its single sovereign capacity, regardless of
the number and character of the executive departments that participate in
the prosecution.”
Cf. Commonwealth v. Chacko, 500 Pa. 571, 580 n.3, 459 A.2d 311, 513 n.3
(1983) (rejecting the argument that because interrogation of an inmate was
conducted by “a member of the internal prison staff rather than a police
officer,” incriminating statements obtained in violation of Miranda were
admissible).
a pe
the argument that regardless of the length of time the Govern-
ment sequesters an accused to answer impending charges,
and regardless of the extent to which prolonged pretrial de-
tention will impair the accused's ability ultimately to defend
himself at trial, the right to counsel does not attach until
the Government initiates formal adversary judicial proceed-
ings by way of arraignment, preliminary hearing, indictment,
information or other formal charge (Pet. Brief 19-21).
This notion is foreign to our system of even-handed justice.
See Coleman v. Alabama, 399 U.S. 1, 15-16 (1970) (Douglas,
J., concurring) (noting with contempt the Soviet practice of
detaining suspects incommunicado for up to nine months with-
out counsel). In no American jurisdiction can an individual
be arrested and detained to answer charges and yet for months
and years be denied legal representation.’* The Solicitor
General offers no rational explanation as to why the rules
should be different here, and he misconstrues this Court’s
prior decisions to marshal support for his frightening svg-
gestion of a connection between the “formality” of the charges
and the right to assistance of counsel.”’
16 In federal prosecutions, the prompt appointment of counsel for one
arrested and detained is mandated by Fed, R. Crim. P. S(a) and 44(a),
which in combination require federal authorities to bring before a magistrate
“without unnecessary delay” an individual they arrest and detain and to
provide him with counsel at or before that initial appearance. Our research
has confirmed that similar rules or practices are in force in each of the fifty
states. The criminal codes of eight states (Arizona, Arkansas, Florida, Missis-
sippi, North Carolina, Oregon, Washington and Wisconsin) require the
appointment of counsel as soon as feasible after the defendant is taken into
custody but in no event later than the initial appearance — which in all juris-
dictions must be conducted without unreasonable delay (typically 24 to 72
hours). Nineteen other states provide for the appointment of counsel at
the initial appearance (Alabama, Georgia, Idaho, Illinois, Indiana, Kansas,
Kentucky, Louisiana, Maine, Massachusetts, Nevada, New Hampshire, New
Mexico, New York, North Dakota, Ohio, Vermont, West Virginia and
Wyoming). The codes of the remaining states require that an indigent
defendant be advised at the initial appearance of his right to request op-
pointed counsel and we are advised by public defenders in these states
that such a request would ordinarily be promptly honored. See also 1 ABA
Standards for Criminal Justice, Providing Defense Services, Standard No.
5-5.1 (adopted Feb. 12, 1979) (“Counsel should be provided to the accused
as soon as feasible after he is taken into custody, when he appears before a
committing magistrate, or when he is formally charged, whichever occurs
earliest.” )
17 Indeed, one must consider the potential, unsettling consequences were the
Solicitor General's view accepted as constitutional doctrine. Save those
(Footnote continued on next page)
ra pee
The Court has never subscribed to the view that no matter
how long a suspect's pretrial detention, his right to counsel
does not attach until the commencement of formal adversary
proceedings. In Kirby v. Illinois, 406 U.S. 682 (1972), on
which the Solicitor General principally relies, the Court
simply declined to extend the Wade-Gilbert exclusionary rule
to an identification show-up conducted during “a routine police
investigation” of a suspect who the police had not even yet
decided to detain to answer charges (id. at 690-91)."* The
Kirby Court simply had no occasion to consider the right to
(Footnote continued from previous page)
precious barriers erected by the Sixth Amendment, little in the Constitution
stands in the way of bringing the Gulag to this Nation. Though one taken
into custody is entitled to a prompt, neutral determination that reasons exist
to justify his arrest, those proceedings need not be adversary and counsel need
not be appointed. See Gerstein v. Pugh, 420 U.S, 103, 114, 119-20 (1975).
Thereafter, nothing in the Constitution mandates the prompt initiation of
what the Solicitor General would view as a triggering event — formal charge,
arraignment, preliminary hearing or indictment. Under the Solicitor
General's view, a person could conceivably be sequestered for months at a
time with no one to protest on his behalf and left to the remedy of challeng-
ing his prosecution under the Speedy Trial Clause when ultimately counsel
was provided,
* At the time of the identificaton show-up in Kirby, the defendant had
merely been brought to the station house for questioning and further inves-
tigation. Not until after the show-up had been conducted did the police
decide to hold hm to an answer (406 U.S. at 684 & n.1). Thus, under the
Court's Marion analysis, the defendant in Kirby was not even “accused” at
the time he claimed to have been denied his right to counsel. Moreover, a
number of lower federal courts have interpreted the language of the plurality
opinion in Kirby on which the Solicitor General relies to mean that arrest
and detention can trigger the right to counsel even prior to the return of
formal charges depending on the extent to which the forces of the state have
“solidified in a position adverse to that of the accused.” Lomax v. Alabama,
629 F.2d 413, 416 (Sth Cir. 1980), cert. denied, 450 U.S, 1002 (1981); see
Hall v. lowa, 705 F.2d 283. 290 (8th Cir.), cert. denied, 104 SCt. 339
(1983); Clark v. Jago, 676 F.2d 1099, 1111-12 n.16 (6th Cir. 1982); United
States ex rel. Robinson v. Zelker, 468 F.2d 159, 163 (2d Cir. 1972), cert.
denied, 411 U.S, 939 (1973). Cf. United States ex rel. Burton v. Cuyler,
439 F.Supp. 1173, 1181 (E.D. Pa. 1977), aff'd, $82 F.2d 1278 (3d Cir.
1978) (“We do not believe . . . that by simply delaying the occurrence of an
t or preliminary hearing (as was done in this case, presumably
because (the defendant] was in custody on another charge) the state can
in effect suspend the right to counsel until it has neatly tied its case
together. . .")
— 7
counsel implications of prolonged preindictment confinement
such as was the case here."”
Far from the wooden approach suggested by the Solicitor
General, this Court has consistently held that an accused's
right to counsel attaches whenever necessary to assure the
fairness of his trial. As the Court wrote in United States v.
Wade, 388 U.S. 218, 224-25 (1967) :
“The guarantee reads: ‘In all criminal prosecutions, the
accused shall enjoy the right... to have the Assistance of
Counsel for his defence.’ (Emphasis supplied.) The plain
wording of this guarantee thus encompasses counsel's
assistance whenever necessary to assure a meaningful
defence’,’”””
Drawing upon Powell v. Alabama, 287 U.S. 45 (1932), which
refused to confine the scope of the Counsel Clause to the trial
itself, the Wade Court explained:
“It is central to that principle that in addition to counsel’s
presence at trial, the accused is guaranteed that he need not
stand alone against the State at any stage of the prosecu-
tion, formal or informal, in court or out, where counsel’s
absence might derogate from the accused’s right to a fair
trial. The security of that right is as much the aim of the
right to counsel as it is of the other guarantees of the Sixth
Amendment .... The presence of counsel at such critical
confrontations, as at the trial itself, operates to assure that
the accused’s interests will be protected consistently with
'® Similarly, the Solicitor General alludes to dicta when the cites post-Kirby
cases in support of his argument. In each, no question was raised as to
whether the Sixth Amendment right to counsel had attached by the time of
the event in question, Rather, the issue was whether the state by specified
conduct had violated that right. See Estelle v. Smith, 451 U.S, 454, 469
(1981) (a post-indictment Sixth Amendment issue); Moore vy, Illinois, 434
U.S. 220, 227 (1977) (right to counsel at show-up conducted at preliminary
hearing); Brewer v. Williams, 430 U.S, 387, 399 (1977) (a post-arraignment
Sixth Amendment issue).
2° Accord, United States v. Mandujano, 425 U.S, 564, 603-04 (1976)
(Brennan, J., concurring); United States v. Ash, 413 U.S, 300, 310 (1973);
Schneckloth v, Bustamonte, 412 U.S, 218, 239 (1973); Coleman v, Alabama,
399 U.S. 1, 7 (1970).
esl dais
our adversary theory of criminal prosecution. Cf. Pointer
v. Texas, 380 U.S. 400.” 388 U.S. at 226-27.
Determining whether an accused subject to long-term pre-
indictment confinement is constitutionally entitled to counsel
thus necessarily turns not on some mechanistic test as sug-
gested by the Solicitor General but rather on whether the
presence of counsel prior to indictment is necessary to assure
the accused a fair trial. Over the past fifty years, this Court
has developed an approach to answering that question. As
explained in the carefully crafted opinion in United States v.
Ash, 413 U.S. 300, 313-17 (1973), each pretrial setting must be
critically examined on two levels: first, to determine whether
the absence of counsel during that particular pretrial phase
would deprive the accused of the kind of assistance historical-
ly contemplated by the Counsel Clause; and second, to deter-
mine whether counsel’s presence at some later juncture is an
effective remedy or counterbalance for his earlier absence.
On the facts of this case, those questions veritably answer
themselves; for as the court of appeals noted, respondents’
uncounselled detention irremedially deprived them of the op-
portunity, fundamental to the right to have the assistance of
counsel, to pursue, prepare and preserve a defense.
1. The Absence of Counsel During Respondents’ Eight-
Month Confinement in Administrative Detention Denied Them
the Assistance of Counsel to Prepare a Defense. This Court
has repeatedly recognized that a fundamental facet of ade-
quate representation in a criminal case is the investigation
and preparation of a defense. As early as Powell v. Alabama,
the Court held that fairness at trial compels the appointment
of counsel sufficiently in advance of the trial so as to afford
the attorney a meaningful opportunity to investigate, to
probe for evidence and to prepare a defense for his client.
In Powell, the Court held that the failure to appoint counsel
until the eve of trial deprived the defendants of representa-
tion during the “critical period . . . when consultation,
thoroughgoing investigation and preparation were vitally
important” (287 U.S. at 57). Further, the Court ruled that
subsequent appointment at trial was no substitute: “Neither
[counsel] nor the court could say what a prompt and thor-
_— oN
oughgoing investigation might disclose as to the facts. No
attempt was made to investigate. No opportunity to do so
was given” (id. at 58).
So fundamenta! is thorough investigation to an accused’s
constitutional right to effective assistance of counsel that the
lower federal courts have regularly set aside convictions when
by neglect or otherwise defense counsel has failed to pursue
evidence potentially beneficial to his client.2* The organized
bar too has long recognized that a probing and exhaustive in-
21 Writing of Powell, Mr. Justice Rehnquist observed in United States v.
Henry, 447 U.S. 264, 291 (1980) (dissenting opinion) :
“[T)he defendants in Powell ‘did not have the aid of counsel in any
real sense, although they were as much entitled to such aid during that
period as at the trial itself’... . They thus were deprived of the opportunity
to consult with an attorney, and to have him investigate their case and
prepare a defense for trial. After observing that the duty to assign counsel
‘is not discharged by an assignment at such time or under such circum-
stances as to preclude the giving of effective aid in the preparation and
trial of the case,’ (287 U.S.] at 71, this Court held that the defendants had
been unconstitutionally denied effective assistance of counsel.”
See Hawk v. Olson, 326 U.S. 265, 278 (1945) (“The defendant needs
counsel and counsel needs time”); Avery v. Alabama, 308 U.S. 444, 446
(1940) (“[T]he denial of opportunity for appointed counsel to confer, to
consult with the accused and to prepare his defense, could convert the
appointment of counsel into a sham and nothing more than a formal com-
pliance with the Constitution's requirement that an accused be given the
assistance of counsel.”) Cf. Coleman v. Alabama, 399 U.S. 1, 9 (1970)
(requiring the presence of counsel at the preliminary hearing in part because
“trained counsel can more effectively discover the case the State has against
his client and make possible the preparation of a proper defense to meet that
case at the trial”).
In Powell and again in Wade, the Court traced the historical antecedents
of the Counsel Clause to discredit the notion that the framers of the Sixth
Amendment intended counsel's role to be limited to guiding his client
through the intricacies of procedural and substantive law. See 287 U.S. at
60-65; 388 U.S. at 224-25. Reacting against English common law rules that
confined counsel's responsibility to advising the accused in “matters of law,”
at the time the Bill of Rights was adopted the constitutions of at least 11
of the 13 states had abolished this limitation and expanded counsel's role to
include investigating, marshalling and presenting the facts. See W. Beaney,
Right to Counsel in American Courts 8-26 (1955); Note, An Historical
Argument for the Right to Counsel during Police Interrogation, 73 Yale
L.J. 1000, 1030-34 (1964). Further, the Powell Court quoted Zephaniah
Swift's 1795 observation, “It is manifest that there is as much necessity for
counsel to investigate matters of fact, as points of law, if truth is to be
discovered.” 287 U.S. at 64 n.
22 See ¢.g., Washington v. Strickland, 693 F.2d 1243, 1251 (Sth Cir. 1982)
(en banc), cert. granted, 103 S.Ct. 2451 (No. 82-1554, 1983); Ford v. Parratt,
(Footnote continued on next page )
=~
vestigation of the facts is an essential part of the assistance to
which an accused is constitutionally entitled. For example,
the American Bar Association’s standards for defense counsel
provide: “It is the duty of the lawyer to conduct a prompt
investigation of the circumstances of the case and explore all
avenues leading to facts relevant to guilt and degree of guilt
and penalty.”** Although perhaps self-evident, the logic of
these rules was most apply summarized in Goodwin v. Swen-
son, 287 F.Supp. 166, 182-83 (W.D. Mo. 1968) :
“The most able and competent lawyer in the world can
not render effective assistance in the defense of his client if
his lack of preparation for trial results in his failure to
learn of readily available facts which might have afforded
his client a legitimate justiciable defense.”
2. Belatedly-Appointed Counsel for an Inmate Long Held
Incommunicado in Administrative Detention Cannot Over-
come the Investigatory Obstacles and Other Disadvantages
that Result from Delay in Commencing the Preparation of a
Defense. Admittedly, the right to counsel does not attach at
every pretrial stage at which an uncounselled accused can be
(Footnote continued from previous page)
638 F.2d 1115, 1117-18 (8th Cir.), vacated on other grounds, 454 U.S.
934 (1981); United States v. Golub, 638 F.2d 185, 189-90 (10th Cir.
1980); Beavers v. Balkcom, 636 F.2d 114, 116 (Sth Cir. 1981); United
States v. Porterfield, 624 F.2d 122, 124 (10th Cir. 1980); Davis v. Alabama,
596 F.2d 1214, 1217-18 (Sth Cir. 1979), vacated as moot, 446 U.S. 903
(1980); Ewing v. Williams, 596 F.2d 391, 393-94 (9th Cir. 1979); Rummel
v. Estelle, 590 F.2d 103, 104-05 (Sth Cir. 1979); Wood v. Zahradnick, 578
F.2d 980, 982 (4th Cir. 1978); Gaines v. Hopper, 575 F.2d 1147, 1150 (Sth
Cir. 1978); Morrow vy. Parratt, 574 F.2d 411, 413 (8th Cir. 1978); Thomas
v. Wyrick, 535 F.2d 407, 413-14 (8th Cir.), cert. denied, 429 U.S. 868
(1976); McQueen v. Swenson, 498 F.2d 207, 212-13 (8th Cir. 1974); and
Gomez v. Beto, 462 F.2d 596, 597 (Sth Cir. 1972). Indeed, even Judge
Wright, who authored the dissenting opinion below, has recognized the
vital importance of early and thorough preparation of the defense. In a
decision ordering the pretrial release of a juvenile who claimed that there
were many potential defense witnesses he could not identify by name but
would recognize by sight, Judge Wright observed: “The ability of an
accused to prepare his defense by lining up witnesses is fundamental, in our
adversary system, to his chances of obtaining a fair trial.” Kenney v. Lenon,
425 F.2d 209, 210 (9th Cir. 1970).
23 | ABA, Standards for Criminal Justice, The Defense Function, Standard
No. 4-4.1 (adopted Feb. 12, 1979).
a
disadvantaged, but rather only when the subsequent appoint-
ment or presence of an attorney is inadequate to remove the
“inequality in the adversary process” resulting from his
earlier absence. United States v. Ash, 413 U.S. at 319; see
United States. v. Wade, 388 U.S. at 227-28. For example, the
Court in Ash held that an accused’s right to counsel will not
ordinarily extend to the prosecutor’s routine trial prepara-
tion interviews with witnesses where defense counsel has an
equal ability “to seek and interview witnesses himself” (413
U.S. at 318).
With respect to prolonged preindictment detention without
counsel, the question thus must be asked: Can an accused
inmate, who has been placed an detained indefinitely in soli-
tary confinement pending indictment, reasonably be assured a
fair trial by virtue of the appointment of counsel months or
years later when formal charges are ultimately brought?
Because of the salutary effect of procedural rules which out-
side the prison walls proscribe long-term pretrial detention
without counsel (see supra, at 22 note 16), few cases shed-
ding light on this question have arisen. In the rare instance in
which one has, however, the courts have condemned the ab-
sence of counsel during a prolonged period of pretrial con-
finement. For example, in Chism v. Koehler, 527 F.2d 612
(6th Cir. 1976), aff’g 392 F.Supp 659 (W.D. Mich. 1975), cert.
denied, 425 U.S. 944 (1976), defendant was held in pretrial
confinement for over a year while he was forced to litigate his
right to appointed counsel. The Sixth Circuit sustained a
grant of habeas relief from the ensuing conviction, and adopt-
ed the opinion of the district court, which had held that de-
fendant’s detention and lack of representation combined to
deprive him of a fair trial:
“During the fifteen months that petitioner was incarcer-
ated without the assistance of trial counsel, he was without
means to effectively marshall his defense. He had no way
of locating and interviewing witnesses while their memories
were fresh. There was no one to gather and preserve evi-
dence which might have been favorable to the defense.
Meanwhile, the State was proceeding in the case with all the
investigative expertise and resources at its disposal. Such
=
an imbalance strikes at the very essence of evenhanded
criminal justice.” 392 F.Supp. at 667.**
See United States v. Dolack, 484 F.2d 528, 530-31 (10th Cir.
1973) (dismissing an indictment on right to counsel grounds
against an accused who despite his repeated requests, was de-
nied counsel for thirteen months while serving a sentence in
Canada for an unrelated offense and who was therefore de-
prived of the ability “to secure witnesses [and] other evi-
dence”). See also Cobb v. Aytch, 643 F.2d 946, 957-62 (3d Cir.
1981) (en banc) (transfer of pretrial detainees to remote
prisons violated their right to effective assistance of counsel
because such transfers “interfered with what the prisoners
could do to help themselves [and] even more drastically with
what counsel might have been able to do for them”).**
In mandating the appointment of counsel for an accused in-
mate who is isolated pending indictment (or, alternatively,
requiring his release from segregation) the court of appeals
echoed these concerns. But it also noted the unique “investi-
gatory obstacles” that confront the defense of a prison case,
and it found that because of them prolonged preindictment
segregation serves “to deny an inmate the opportunity to
take steps to preserve his or her own defense” (Pet. App. 1la-
24 To the same effect are the observations of this Court in Smith v. Hooey,
393 U.S. 374, 379-80 (1969):
“(It is self-evident that ‘the possibilities that long delay will impair
the ability of an accused to defend himself’ are markedly increased when
the accused is incarcerated in another jurisdiction. Confined in a prison,
perhaps far from the’ place where the offense covered by the outstanding
charge allegedly took place, his ability to confer with potential defense
witnesses, or even to keep track of their whereabouts, is obviously impaired.
And, while ‘evidence and witnesses disappear, memories fade, and events
lose their perspective,’ a man isolated in prison is powerless to exert his
own investigative efforts to mitigate these erosive effects of the passage
of time.”
25 The Solicitor General observes that many other suspects find themselves
similarly disadvantaged — i.e, the target of an undisclosed investigation, the
suspect serving time who is being investigated for an offense committed out-
side of prison, an inmate-suspect who has legitimately been transferred to
another correctional institution (Pet. Brief 31, 35-36) — and that the court
of appeals’ decision militates for the appointment of counsel for them as
well. The critical difference, of course, is that these suspects have not been
held to answer impending criminal charges and thus are not “accuseds”
constitutionally entitled to have the assistance of counsel in the first place.
olen
12a). Importantly, the court found these handicaps irremedi-
able by the appointment of counsel months or years later at
the time of indictment (Pet. App. 16a). The Solicitor General
maintains that the court of appeals grossly exaggerated the
handicaps imposed on counsel appointed to defend an inmate
who months or years before was isolated in ADU pending the
return of formal charges. But if anything, the opinion of the
court below understates them.
Endemic to the defense of prison cases is the constantly
shifting composition of the prison population. The court of
appeals’ characterization of the inmate population as “tran-
sient” is not without sound foundation. While the average
federal inmate population in fiscal year 1981 was 24,933, dur-
ing that year authorities committed 16,840 new inmates and
discharged, either out of the system or from one prison to an-
other, 10,639. Compared to the average inmate population,
newly-admitted inmates comprised 67.5%, while those exiting
the system (or moving within it) represented 42.7%.”* In state
institutions, the turnover is even greater. For example, dur-
ing 1981 the mean average inmate population in state facilities
was 313,181. During that year, state authorities committed
198,288 new inmates — almost two-thirds of the average —
and discharged 162,537 — in excess of one-half.’
The impact of these statistics is apparent. If an inmate has
been isolated for twelve months in federal administrative de-
tention, his attorney can reasonably anticipate that in excess
of four out of each ten inmates he wishes to interview will have
long ago departed the institution. If the defendant is in state
custody, the chances that an inmate-witness will have been dis-
charged are better than even.
*6 See Federal Bureau of Prisons Inmate Information Systems, Report Nos.
70.53 (“Report of Man Days”) and 71.02 (“Report of Commitments and
Discharges”) (1983). The comparable statistics for fiscal 1982 and 1983
are as follows:
1982 1983
Average Population 27,730 29,718
New Commitments 19,496 21,677
New Commitments as a % 70.3% 72.9%
Discharges _. 11,784 12,479
Discharges as a % 42.5% 42.0%
27 See U.S. Dep't of Justice, Bureau of Justice Statistics, Prisoners In State
and Federal Institutions on December 31, 1981, Tables 1 and 12 (March
1983).
ee
The handicaps under which defense counsel consequently
must operate are not minimized by rosters and locator serv-
ices, which may or may not be available or reliable.** To the
extent that the prosecution can provide such information and
to the extent that it is accurate,” it is typically unhelpful in
light of the reality that prisoners know one another not by
legal identities but by institutional nicknames. See generally,
D. Clemmer, The Prison Community 91-93 (1940). In this
case, not only were prison authorities unable to match legal
names with sobriquets; they actually sought to enlist defense
counsel to assist in compiling such a directory (JA 150).
To these obstacles must be added those which are far more
difficult to document but which inevitably result from the na-
ture of the prison environment and its constituents. As nu-
merous social scientists have observed and reported, and as
recognized by many courts, the value system within a prison
is vastly different from that of the world outside.” Living in
an environment of unremitting tension, fear, distrust, suspi-
cion and retaliation, inmates operate under a code unique to
the tustitution the quintessential aspects of which are nonin-
volvement and noncooperation. The principal targets of the
code, of course, are members of the prison staff as well as
28 In speaking of these aids, the Solicitor General consistently notes only
that they “may be available” (Pet. Brief 42). Frequently, they are not. See,
e.g., United States v. Morrison, 518 F.Supp. 917 (S.D.N.Y. 1981).
** An interesting commentary on the reliability of institutional data was
provided by an author who studied the New Mexico State Prison uprising.
In the aftermath of the riot, “according to the department's own alarming
documents, 20 men were still unlocated entirely, eight others were not where
official lists had them, five were unaccountably shown to have been paroled
months ahead of eligibility, and six were supposed to be in federal prisons
that had no record of ever receiving them.” Los Angeles Times, Dec. 19,
1983, Pt. V (Book Review) at 22 (quoting Roger Morris).
© See, e.g., Wolff v. McDonnell, 418 U.S. 539, 561-562, 586-587, 596-597
(1974); Pugh v. Locke, 406 F.Supp. 318, 325 (M.D. Ala. 1976), aff'd sub
nom., Newman v. Alabama, 559 F.2d 283 (Sth Cir. 1977), modified sub
nom., Alabama v. Pugh, 438 U.S 781 (1978); Landman v. Royster, 333
F.Supp. 621, 646 (E.D. Va. 1971); Missouri v. Green. 470 S.W.2d 565,
569 (Mo. 1971), cert. denied, 405 U.S. 1073 (1972); L. Bowker, Prison
Subcultures (1977); D. Clemmer, The Prison Community (1940); J. Irwin
Prisons in Turmoil 11-36 (1980); The Prison (D. Cressey ed. 1966); Theo-
retical Studies in the Social Organization of the Prison (R. Cloward ed.
1960).
—
other symbols of society's authority, who are never to be ac-
corded respect or prestige and are to be “treated with constant
suspicion and distrust.’** However, as suggested by prison
axioms such as “Do your own time,” the inmate code permits
prisoners to manifest little loyalty to one another Thus, as
numerous first-hand observers have reported, when faced
with the choice of intervening on behalf of another inmate —
particularly when to do so would require taking a position
adverse to the administration— most inmates will decide
simply not to get involved.™
In tension with the inmate code, however, is what students
of prison society have identified as the primary drive of all
inmates. As Donald Clemmer reported in his now classic
study of the prison environment, unlike the world outside
which values “success, service, truth, kindness, and so forth,”
within the institution “[t]he greatest and only universal pur-
pose is for freedom.’™ Freedom is not defined solely in terms
of obtaining outright release, or even a shorter sentence or
preferential treatment. Inmates are also motivated to an ex-
tent not imaginable outside the institution by revenge or re-
taliation for prior actions, or simply in order to get rid of
someone seen as dangerous or threatening to an inmate’s
31 Sykes & Messinger, “The Inmate Social System,” in The Sociology of
Corrections 97, 100 (1977) (hereafter “Sykes & Messinger’); see L. Bowker,
supra note 30, at 135 n. 79; Cloward, “Social Control in the Prison,” in The
Sociology of Corrections, supra, 110, at 129 (hereafter “Cloward”).
32 See Testimony of Prof. Edward C. Weeks (Tr. 1141-42) [hereafter
“Weeks’ Testimony”]; N. Leopold, Life Plus Ninety-Nine Years 141 (1958);
Sykes & Messinger, supra note 31, at 99-100.
33 See e.g., Colson, “Towards an Understanding of Imprisonment and Reha-
bilitation,” in Crime and the Responsible Community 152, 160 (1980);
Hyland, “Diagnosis: Extreme Alienation,” in /nside: Prison American Style
46, 48 (R. Minton, Jr. ed. 1971); Maguire, “Racism II,” in Inside: Prison
American Style, supra, at 84; Weeks’ Testimony (Tr. 1141-42).
* D. Clemmer, The Prison Community 151 (1940). According to two
other commentators, inmates are motivated by the goal of “serving the
least possible time and enjoying the greatest number of pleasures and privi-
leges while in prison.” Sykes and Messinger, supra note 31, at 99. See gen-
erally, G.M. Sykes, The Society of Captives: A Study of a Maximum Security
8) (hereafter “Sykes”).
a pone
safety.*® As another social scientist points out, because in-
mates are not constrained by considerations of truthfulness,
the prisoner who provides information about a fellow-inmate
“may be a liar as well as a betrayer and he threatens the inno-
cent as well as the guilty.”*
It is in this context that the question of an accused inmate's
need for early representation must be considered. See Wolff
v. McDonnell, 418 U.S. 539, 562 (1974).°" Isolated from the
remainder of the population, an inmate held in ADU without
counsel is likely to be disadvantaged in two critical respects.
First, as apparent from the previous discussion, there is an
enormous temptation on the part of inmates, whether they
have actual knowledge of the facts or not, to attempt to
discern what they believe prosecution investigators want to
hear and then to broker their testimony in exchange for a
concession, be it a reduced sentence, a favorable transfer or
merely the “hope ... to preclude bodily harm, receive amnesty
for their own indiscretions or retaliate against real or imag-
** See L. Carroll, Hacks, Blacks and Cons 84 (1974); Cloward, supra note
31, at 124-25; Cressey & Krassowski, /nmate Organization and Anomie in
American Prisons and Soviet Labor Camps, 5 Soc. Probs. 217, 218-19
(1958); Sykes, Men, Merchants and Toughs: A study of Reactions To
Imprisonment, 4 Soc. Probs. 130, 134-35 (1956).
3® Sykes, supra note 34, at 89. Indeed, according to soziologists who have
studied the prison environment, the chief impediment to collecting accurate
data is the inability of a researcher to rely on information an inmate divulges
to a person in authority. See D. Ward & G. Kassenbaum, Womens Prison:
Sex and Social Structure 245 (1965); W. Williams & M. Fish, Convicts,
Codes, and Contraband xxii (1974); Morris, “The Sociology of the Prison,”
in Criminology in Transition 69, 85 (1965).
37 To all of this must be added “([t)he atrocities and inhuman conditions of
prison life in America,” United States v. Bailey, 444 U.S. 394, 421 (1980)
(Blackmun, J., dissenting), including the constant threat of brutality and
violence by and towards both prisoners and guards and the frequent harass-
ment and retribution by prison officials against prisoners who inconvenience
them. See, e.g., Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall,
J., concurring); Stevens v. Ralston, 674 F.2d 759, 760 (8th Cir. 1982);
Bono v. Saxbe, 450 F.Supp. 934, 943 (E.D. Ill. 1978), modified, 620 F.2d
609, 617 (7th Cir. 1980); Laaman v. Helgemoe, 437 F.Supp. 269, 305-306
(D.N.H. 1977); Landman v. Royster, 333 F.Supp. 621, 627, 628, 631, 633-
637, 650 (E.D. Va. 1971); Sostre v. Rockefeller, 312 F.Supp. 863, 869-871
(S.D.N.Y. 1970), modified, 442 F.2d 178 (2nd Cir. 1971), cert. denied, 404
U.S. 1049 (1972).
a we
ined aggressors.’”™* While some of this information may be
truthful, much may not be; and the passage of time before
someone inquires on behalf of the accused makes discerning
one from the other that much more difficult. Further, as time
lapses without witnesses being interviewed and statements
taken, potentially untruthful inmates are afforded greater
opportunity to assess how a situation can be turned to their
advantage and to seize the occasion.”
Even more unfair to the accused inmate are the forces that
operate on potential witnesses who are in possession of
information likely to be helpful to the defense. As noted
before, such inmates are unlikely to volunteer what they
know to prison personnel and police investigators not only
because of an inmate code which proscribes cooperation
generally and which compels an inmate to avoid becoming
involved in another’s affairs, but also because merely speak-
ing with authorities will open an inmate to charges of being
an informer.” As a result, the Government’s investigation
of a prison crime, no matter how thorough and impartially
conducted, necessarily becomes one-sided. Cooperating in-
mates by definition will be those who prepared to provide
information damaging to the accused, while potential defense
witnesses will be excluded by a process of self-selection.
Thus, unlike the situation outside the prison, counsel appointed
for the accused inmate cannot assume that merely because
the Government has fairly and fully investigated, potentially
exculpatory witnesses will have been identified and their
testimony preserved.
38 Guenther & Guenther, “ ‘Screws’ vs. ‘Thugs,’ in Criminal Behavior and
Social Systems 511, 525 (2d ed. 1976).
3° We do not mean to suggest that prosecutors would deliberately solicit
or make use of false testimony. The fact of the matter is, as one study
revealed, “officials may find themselves being manipulated by their prisoners
into a position where they are serving unintentionally as a weapon in the
battles taking place among the inmates. There is always the danger that they
will be gulled in the process. .. .” Sykes, supra note 34, at 89. See also Sykes,
Men, Merchants and Toughs: A Study of Reactions To Imprisonment,
4 Soc. Probs. 130, 134 (1956). Indeed, this is a common experience among
prison therapists. See ¢.g., Bogan, Client Dissimulation: A Key Problem in
Correctional Treatment, 39 Fed. Probation 20, 20-22 (1975).
4° See Cloward, supra note 31, at 129. Furthermore, a prisoner may rightly
be concerned about how any information he may volunteer may be used. Any
testimony tending to absolve one potential defendant is quite likely to help
incriminate another, and hence, be likely to open the witness to retaliation.
ee
Further, the unseen forces that operate within a prison serve
not only to conceal potential defense witnesses but frequently
to neutralize them. Because of the prison ethic “do your
own time,” rather than divulge information favorable to a
fellow inmate, a prisoner interrogated by prison authorities
or prosecution investigators is far more likely to deny
knowledge altogether and, if necessary, to fabricate a story
to distance himself from the events in question.*' With no
one developing testimony on behalf of the accused until
months or years later, potential defense witnesses are likely
to be either neutralized by prior, inconsistent statements or
unwilling to testify for fear that they will be punished or
prosecuted for their earlier, false statements.
Against the backdrop of a shifting institutional population,
inmate anonymity, the reluctance of inmates to come forward
with exculpatory information, their willingness to broker
testimony regardless of its truth and their inclination to lie
rather than get involved, an enormous tactical advantage lies
with the prosecution when for months or years it alone has
access to the inmate population and the ability to investigate.
The unrepresented inmate held in solitary confinement, by
contrast, has no one on his’ behalf to identify witnesses, to
preserve favorable testimony, to counterbalance the corrupt-
ing influences that may lead a prosecutor unwittingly to
induce fabricated testimony, or to discourage potential de-
fense witnesses from naively providing a basis for their later
impeachment. Instead, he is relegated to an investigation
conducted long after the fact when potentially critical wit-
nesses are long gone and the testimony of those that remain
is indelibly fixed.
*! See, e.g., Weeks’ Testimony (Tr. 1141-42). Indeed, in this case deliberate
attempts to neutralize potential defense witnesses in this fashion continued
even after the appointment of counsel. Purportedly for the purpose of
scheduling witness interviews, prison authorities required defense counsel
to provide in advance of their arrival at the institution a list of the inmates
with whom they wished to speak. In fact, these lists were routinely provided
to FBI agents who would then interrogate potential defense witnesses before
they could be interviewed by the defense counsel. Forced to submit to these
FBI interviews (a privilege not afforded to the defense until the court so
ordered), these inmates typically disclaimed any knowledge of the Hall
murder. See Defendants’ Motion for Protective Order 4-6, 9-11 (CR 41).
—
The Solicitor General nonetheless argues that the inmate
held in isolation pending indictment may avail himself of
opportunities to investigate and preserve testimony. First,
it is suggested that the inmate may provide a full account to
FBI investigators. Aside from ignoring that such self-help
would first require the inmate to waive Fifth Amendment
safeguards** — and, by cooperating with officials, to behave
in a way contrary to the institutional ethic — the suggestion
is ironic. Prior to being interrogated by FBI agents on the
evening of the Hall murder, respondents were advised that
they had the right first to consult with counsel, retained if
they could afford it, appointed if not. When respondents
asked to speak with lawyers, however, the agent in charge
summarily terminated the interview (JA 128).*
The Solicitor General alternatively suggests that an iso-
lated inmate may enlist the assistance of a staff member who,
during disciplinary proceedings, is available to collect evi-
dence on behalf of the inmate.+ Putting aside the conflict
inherent in asking a member of the prison staff to assist
an inmate in disproving charges preferred by a fellow-
employee,“ the suggestion is wholly unrealistic. In the first
place, institutional pressures make it impossible to expect
that an inmate-suspect would repose trust in a representative
of the administration, no less authorize a staff member to
approach prisoners on his behalf. To suggest otherwise is
42 Cf. Simmons v. United States, 390 U.S. 377, 394 (1968) (“[We find it
intolerable that one constitutional right should have to be surrendered in
order to assert another.” )
‘8 For many of the same reasons, it is unrealistic to suggest that the accused
inmate can make a record of his defense by testifying at the prison’s disci-
plinary hearing. A committee of the American Bar Association has also
criticized this as creating for the inmate a “cruel dilemma”:
“{I)f he testifies in that hearing, the testimony is admissible in [any]
later criminal proceeding; if he does not testify, he is almost assured of
being found in violation of prison regulations and subject to severe
penalties.”
ABA Joint Committee on the Legal Status of Prisoners, Standard No. 3.3,
Commentary (Tent. Draft), reprinted in 14 Am. Crim. L. Rev. 377, 454
(1977).
“4 Several courts have commented on the “siege mentality” within the
institution, on the part of prison staff members no less than on the part of
prisoners. See, ¢.g., Landman v. Royster, 333 F.Supp. 621, 645-46 (E.D.
Va. 1971). Further, as noted by one candid lawyer employed by the State
(Footnote continued on next page )
aw $7 =
to deny the reality that, as perceived by prisoners, prison
personnel are to be viewed with suspicion and distrust. Fur-
ther, using a staff member as an intermediary to communicate
with fellow-inmates and thereby involve another inmate in
one’s own problem would transgress the prison code. As
respondent Mills explained in characteristic understatement,
“The inmates with whom you must live on a daily basis
respond very badly to having their name given out in that
manner” (JA 130). Finally, it belies reality to expect that
an inmate so approached would perceive the staff member
as a legitimate intermediary even were the inmate prepared
to risk being labeled a “snitch” or to open himself to retalia-
tion for unwittingly implicating someone else.
Contrary to the Government's view, there is no adequate
counterbalance to an aggressive prosecutive investigation
short of providing counsel for an inmate who by virtue of
his isolation has been disabled from undertaking his own
investigation.** The court of appeals recognized this. Con-
(Footnote continued from previous page )
of Texas to provide legal assistance to inmates, staff members cannot reason-
ably be expected to advocate against the administration:
“[als employees, we do not believe that we can honestly represent
inmates who wish to sue prison officials, to prosecute that litigation if we
are working with, eating with, and in some cases living on the units with
other prison officials, and I think the personal conflicts there are pretty
obvious.”
Quoted in Hooks v. Wainwright, 536 F.Supp. 1330, 1348 (M.D. Fla. 1982).
Additionally, reliance on a staff member presents the same Fifth Amendment
dilemma for the inmate as speaking with the FBI or testifying before a
disciplinary committee. Indeed, Bureau of Prisons regulations appear to
prohibit the staff member from discussing the incident with his “client” with-
out first admonishing the inmate that his statements may be used against him
and without first obtaining FBI approval. See 28 C.F.R. § 541.41(b)(1);
U.S. Dep't of Justice, Federal Prison System, Program Statement No. 5507.1
(Feb. 19, 1968). .
*5 We do not mean to suggest that assuring fairness at the eventual trial
compels that the inmate-suspect be afforded absolute parity with the Gov-
ernment in terms of the commencement of an investigation or its thorough-
ness. On the other hand, as Judge Charles Wyzanski observed in a similar
setting (negligent failure of defense counsel to conduct an investigation) :
“[The Constitution] does not leave the poor to a representation which is
in any aspect — pretrial, investigatory, trial, or otherwise — shockingly
inferior to what may be expected of the prosecution's representation. While
a criminal trial is not a game in which the participants are expected to
enter the ring with a near match in skills, neither is it a sacrifice of unarmed
to gladiators.” United States ex rel. Williams v. Twomey, 510
F.2d 634, 640 (7th Cir.), cert. denied, 423 U.S. 876 (1975).
_
sistent with this Court's teaching in Powell that the obligation
to provide counsel “is not discharged by an assignment at
such time or under such circumstances as to preclude the
giving of effective aid in the preparation ... of the case” (287
U.S. at 71), the court of appeals struck a reasonable balance.
True to the language of the Sixth Amendment, the en banc
opinion requires appointment of counsel for an indigent in-
mate confined in ADU only after he establishes that legitimate
security concerns have ceased to exist and that his detention
has been continued to hold him to answer impending criminal
charges. And in no event need counsel to be appointed or,
alternatively, the inmate released back into the general prison
population within the first ninety days of his incarceration —
a period plainly adequate to permit tempers to cool, for prison
authorities soberly to assess the need for disciplinary or re-
medial action and for the Government to determine whether
it intends ultimately to prosecute.
II. BECAUSE RESPONDENTS’ PROLONGED, UNCOUN.-
SELLED SEGREGATION PENDING INDICTMENT
SIGNIFICANTLY IMPAIRED THEIR RIGHT TO A
FAIR TRIAL, THE COURT OF APPEALS PROPERLY
DISMISSED THE CHARGES AGAINST THEM
Having scrupulously monitored this case throughout its
pretrial phase, the district court concluded that respondents’
eight-month isolation without counsel had irreparably de-
prived them of an opportunity for a fair trial:
“Defendants’ eight-month detention in ADU, their total
segregation from the general prison population and the
government’s refusal to appoint counsel or some other neu-
tral investigator on their behalf combined to prejudice irrep-
arably the defendants’ ability to prepare for trial and to
contest the charges against them. Specifically, defendants
have been prejudiced by the dimming of memories of wit-
nesses who could have substantiated their alibi; by the
irrevocable loss of inmate witnesses known to the defend-
ants only by prison “nicknames” now long-since trans-
ferred to other institutions or released from custody al-
together; and by the deterioration of physical evidence
essential to corroborate the defendants’ testimony and to
— Pp
rebut the evidence against them. In short, because of their
belated appointment, and because of the transitory nature
of the prison population, defense counsel simply did not
have the opportunity to make the kind of investigation that
the government made. The handicaps under which the de-
fense must now operate cannot be remedied at this late
date” (Pet. App. 46a-47a).
Following respondents’ convictions, the court of appeals
conducted an independent review of the record which also
convinced it that respondents’ prolonged isolation without
counsel “unconstitutionally obstructed [their ability] to de-
fend themselves at trial” (Pet. App. 23a). Under standards
established by this Court, no basis exists for disturbing the
court of appeals’ order of dismissal.
A. The Courts Below Had Substantial Basis for Conclud-
ing that Respondents’ Denial of Counsel Significantly
Impaired Their Attorneys’ Ability to Provide Effective
Representation
In United States v. Morrison, 449 U.S. 361 (1981), this
Court had recent occasion to reassess the standards for dis-
missal of an indictment on account of a right to counsel viola-
tion. Unlike the present case, Morrison involved not a denial
of counsel at any critical stage, but the unauthorized intrusion
of federal agents into an attorney-client relationship. With
full knowledge that respondent was represented by retained
counsel, agents of the Drug Enforcement Agency twice ap-
proached respondent, sought her cooperation in a related
investigation and disparaged the abilities of her retained at-
torney (id. at 362). On neither occasion did respondent make
any incriminating statements or supply the agents with
any information concerning her case (id. at 362-63). Nonethe-
less, respondent moved to dismiss the indictment, citing only
the egregious behavior of the federal investigators and con-
tending only that the agents had interfered with her right to
counsel in some unspecified way (id. at 363).
Reversing the dismissal order entered by the Third Circuit,
the Court observed:
“The prem‘se of our prior cases is that the constitutional
infringement identified has had or threatens some adverse
— ee
effect upon the effectiveness of counsel’s representation or
has produced some other prejudice to the defense. Absent
such impact on the criminal proceeding, however, there is
no basis for imposing a remedy in that proceeding, which
ean go forward with full recognition of the defendant’s
right to counsel and to a fair trial.” Jd. at 365.
This case is light-years removed from Morrison. First,
unlike Morrison, which presented merely an unauthorized and
unfruitful intrusion into an existing attorney-client relation-
ship, respondents in this case were denied representation
efitirely for up to twenty months during what the court of
appeals characterized as a period “critical to [respondents’]
ability to prepare and preserve a defense” (Pet. 12a).
Second, again in marked contrast to Morrison, respondents
adduced abundant evidence that the Sixth Amendment viola-
tion had rendered their belatedly-appointed lawyers unable
to provide the assistance at trial that the Constitution re-
quires. In pleadings submitted to the district court, defense
counsel chronicled their inability some ten months after the
murder to investigate the charges against their clients and to
probe for exculpatory evidence. Helpful witnesses known only
by jailhouse monikers had been transferred to other institu-
tions or released from custody altogether, and thus were irre-
trievably placed beyond the reach of defense counsel (JA
125, 150-51). Many of the witnesses located by counsel were
insufficiently confident of their recollections a year after the
fact to run the risk of what they viewed as certain reprisals
by prison officials.“ Other witnesses, who immediately after
the murder sought to deflect prosecution investigators by con-
cocting false stories to distance themselves from the events in
question, declined to testify in light of their own potential
of the details of the discussion to risk incurring the wrath of prison officials
(or, as FBI agents had admonished him, being prosecuted for perjury) by
testifying (JA 153). For similar reasons, another inmate declined
—
criminal liability for providing false statements (or if the
Government chose to accredit their earlier statements, for
perjury at trial) (JA 153; CR 41, at 6).
The Solicitor General’s misapplication of Morrison to the
facts of this case is accompanied by a standard of prejudice
that has no place in remedying a right to counsel violation
(discussed more fully infra, at 46-50). Thus, the Solicitor
General criticizes the court of appeals for relying on respond-
ents’ pretrial proof of prejudice and for failing to conduct
“a post-trial, case-specific analysis” of the record made at
trial “to determine whether [respondents] suffered actual
and specific prejudice” (Pet. Brief 18). But when prejudice
stems from the unavailability of witnesses because of coun-
sel’s belated appointment and the faded recollections of
those that are ultimately found, of what utility is a searching
review of the trial record? The testimony of those witnesses
who appeared at trial reveals nothing of the import of those
who did not. And the recollections of those called to testify
sheds no light on what has been forgotten.
The futility of searching for prejudice in a trial record
has frequently been the subject of comment. As Mr. Justice
Brennan wrote of the inherent difficulties in establishing a
record of the prejudice that results from a violation of the
Speedy Trial Clause:
“Although prejudice seems to be an essential element
of speedy-trial violations, it does not follow that prejudice
—or its absence, if the burden of proof is on the govern-
ment — can be satisfactorily shown in most cases. ... Even
if it is possible to show that witnesses and documents,
once present, are now unavailable, proving their materiality
is more difficult. And it borders on the impossible to
measure the cost of delay in terms of the dimmed memories
of the parties and available witnesses.” Dickey v. Florida,
398 U.S. 30, 53-54 (1970) (coneurring opinion).”
‘T See also Holloway v. Arkansas, 435 U.S. 475, 490-91 (1978) (prejudice
resulting from defense counsel's conflict of interest will not appear on the
record); Barker v. Wingo, 407 U.S. 514, 532 (1972) (“If die or
disappear during a delay. the prejudice is obvious. There is prejudice if
( Footnote continued on next page)
—_
In any event, it is simply not true that the court of appeals
made no review of the trial record in reaching the con-
clusion that respondents had been prejudiced by the denial
of counsel. Indeed, its opinion reflects just the contrary.”
And the trial record substantiates rather than undercuts
respondents’ pretrial evidence of prejudice. Although the
record obviously does not reveal what missing witnesses
would have said or what forgetful witnesses would have
recalled, it vividly illustrates in a number of respects the
handicaps caused by the delay in appointing counsel for
these accuseds, who all the while were prevented from prob-
ing for evidence themselves.
Key to the prosecution’s inconsistent and often incredible
case against respondents was the Government’s purported
evidence of a motive. The prosecution offered a tenuous but
colorable theory: that respondent Mills murdered Thomas
Hall to avenge Mills’ placement in protective detention during
the summer of 1979 on account of erroneous information
(Footnote continued from previous page )
defense witnesses are unable to recall accurately events of the distant past.
Loss of memory, however, is not always reflected in the record because what
has been forgotten can rarely be shown.”) A number of lower federal courts
have also acknowledged the near impossibility of adducing from the trial
evidence if the government had carried through the indictment and arrest
judiciously.”) See also United States v. Mays, 549 F.2d 670
1977) (Ely, J., dissenting) (“The obvious question, as
rat
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— 45 —
knowingly supplied to prison officials by Hall.** However,
prior to trial the prosecution was compelled to produce to
respondents documents suggesting that someone other than
Mills or Pierce had long before embarked on a campaign to
rid the prison of Mr. Hall. In April, 1979, well before Mills’
placement in protective confinement (Tr. 342, 362) and even
prior to Pierce’s arrival at Lompoc (Tr. 1392), Hall’s cell
in K Unit was firebombed. Several days later, he was placed
in protective detention (apparently with his acquiescence
(Ex. 104; Tr. 1102-03)) on the basis of information con-
fidentially revealed to prison authorities by three inmates
“that his life was in danger, and he would possibly be killed”
(Tr. 1091, 1093). Writing to his parents from ADU shortly
thereafter, Hall penned a farewell letter to his family and
asked that it be read “at my funeral” (Ex. 105B; Tr. 1104-05).
As they predicted would be the case prior to trial (JA
154-55), respondents’ counsel were wholly foreclosed from
exploiting this powerful exculpatory evidence because of
their inability some fourteen months after the fact to locate
witnesses capable of providing competent testimony. Left
to their own devices, respondents were unable to trace the
whereabouts of the three inmates who told prison authorities
in April 1979 (four months before the murder) that Hall’s
life was in danger. Further, although numerous inmates who
were interviewed during the summer of 1980 professed to
having had knowledge of the events surrounding the earlier
attempt on Hall’s life, none was sufficiently certain of those
events fourteen months later to testify under oath (id.). As
a result, respondents were relegated at trial to establishing
the sterile facts of the April 1979 events, but failed entirely
** The evidence supporting the prosecution's theory consisted of a statement
purportedly made by Mills to inmate Wagner when both were being held in
i
:
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E
:
and that he was going to take care of it when he got out” (Tr. 344).
statement was coupled with the testimony of a prison counselor that
had provided the information which had resulted in Mills’ protective
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nee
in offering the jury a clue as to why Hall feared for his life,
why a prior attempt to kill him had been made and, most
importantly, who was responsible.
The trial record also provides evidence of another kind of
prejudice. Pretrial submissions established that during the
nearly one-year investigatory head-start arrogated by the
prosecution when respondents could conduct no investigation
of their own, more than fifteen percent of the prison popula-
tion had been interrogated by federal agents.” Not suspecting
that respondents would solicit their testimony, and seeking
to avoid any involvement, many of these inmates concocted
stories to distance themselves from the events in question.
As a result, respondents’ counsel were prevented from even
adducing the testimony of those inmates who feared prose-
cution for false swearing or perjury, and the Government
assured itself a veritable field day in impeaching defense
witnesses. Indeed, of the three defense witnesses who de-
scribed the Hall murder, all three were impeached with prior
statements placing them well outside E Unit at the time of
the crime (Tr. 1023-24, 1038-40, 1055-56); and of the three
witnesses who testified that neither Mills nor Pierce entered
or departed the E Unit on the evening of the murder, each
confessed to having lied to prosecution investigators when
shortly after the murder they said they were elsewhere that
night (Tr. 692, 696, 720-22, 741-42).™
Our point is not that an examination of the trial record
alone will reveal conclusively that respondents were denied
5 On the evening of the Hall murder, 904 inmates were residing in general
population at the Lompoc Penitentiary (Ex. 34; Tr. 610-11). Within the
first six months after the murder, FBI agents interrogated in excess of 146
of them (JA 143-46).
*! The prosecution took pains to preserve this tactical advantage. Purporting
to invoke the Jencks Act as a shield, it refused to produce any statements
taken from inmates it did not intend to call as trial witnesses. See Govern-
ment’s Opposition To Defendant's Motion For Discovery 4-6 (CR 44). And
when the district court ordered some of these statements produced pursuant
to Fed. R. Crim. P. 16, the Government successfully petitioned a panel of the
Ninth Circuit for a writ of mandate, which held — erroneously we submit —
that the Jencks Act prohibits discovery of statements of individuals the Gov-
ernment does not intend to call, regardless of their materiality under Rule 16.
See Pet. App. 38a-40a. Respondents’ petition for review of that ruling was
denied. Mills v. United States, 454 U.S. 902 (1981).
pa
a fair trial. Rather, the record is indicative of obstacles and
handicaps that an experienced trial judge, fully conversant
with the evidence in the case and the realities of prison life,”
believed an accused should not have to confront and suffer
under. In his view, and that of the court of appeals, prejudice
inheres in a situation in which for eight critical months the
prosecution is able to conduct full-scale trial preparation
while the defense cannot even start. The trial record only
serves to confirm that view.
The courts below are not alone in concluding that the denial
of a meaningful opportunity to investigate is necessarily
prejudicial to a defendant in such circumstances. For exam-
ple, in United States v. Morrison, 518 F.Supp. 917 (S.D.N.Y.
1981), a strikingly similar case involving an assault committed
in prison, the defendant’s investigation was hindered by the
Government's failure to preserve a list of inmates who were
confined in the unit in which the crime took place. In response
to a motion to dismiss, the Government managed to locate two
undated rosters which, together with a related list secured
by the defense, provided the names of some twenty-four in-
mates who were in the unit on the date in question. Although
the defendant could point to no specific witness or item of
testimony that had been irretrievably lost, the district court
ruled that the defendant had “been deprived of the opportu-
nity to interview witnesses who very possibly have exculpatory
testimony to offer”, and thus could not reasonably be assured
a fair trial (id. at 918-19):
“Despite these efforts [of the Government to identify all
of inmates who were confined in the unit in which the assault
took place], however, there remains a strong possibility
that there were other inmates who witnessed the assault
but who are not named on the lists now available. The
defense counsel represents that one such witness has been
found whose testimony may prove beneficial to the defense.
52 See Rutherford v. Pitchess, 457 F.Supp. 104 (C.D. Cal. 1978) (Gray, J.)
(conditions of post-conviction confinement in county jail); Stewart v. Gates,
450 F.Supp. 583 (C.D. Cal. 1978) (Gray, J.), remanded, 618 F.2d 117 (9th
Cir. 1980) (policies respecting inmates’ communications with the outside
world); Dillard v. Pitchess, 399 F.Supp. 1225 (C.D, Cal. 1975) (Gray, J.)
(treatment of pretrial detainees).
=
Undoubtedly there are other witnesses who would provide
exculpatory testimony but whose whereabouts will never
be known from available information.”™
This Court counselled in Morrison for judicial responsive-
ness “to proved claims that governmental conduct has ren-
dered counsel’s assistance to the defendant ineffective” (449
U.S. at 364). The Court noted that judicial intervention is
appropriate when “the constitutional infringement identified
has had or threatens some adverse effect upon the effective-
ness of counsel's representation” (id. at 365) (emphasis
added). And it approved dismissal of an indictment, ad-
mittedly an extreme remedy, where the Sixth Amendment
violation results in a “substantial threat” of “demonstrable
prejudice” (id.) (emphasis added). On the facts of this case,
and after a thorough consideration of Morrison, the court of
appeals justifiably concluded that at a minimum such a threat
was present here. In the absence of any lesser remedy for
the denial of assistance of counsel, at the only time it would
have been of use to respondents in preparing and preserving
a defense, it properly dismissed the indictments.™
B. This Court Should Not Discard the Morrison Standard
for a Test Requiring Proof of Actual Prejudice
Although not expressly proposing it, the Solicitor General
implicitly asks this Court to discard the “substantial threat
of prejudice” standard it so recently reaffirmed in Morrison
in favor of the “actual prejudice” test used to evaluate under
the Fifth Amendment claims of undue preaccusation delay.
Thus, he maintains that the absence of counsel at a critical
stage should not be sufficient to upset a conviction unless the
defendant establishes that he “has suffered actual and specific
prejudice as a result of the failure to appoint counsel” and
the prejudice is so “serious ... that he can be said to have been
58 Noting that “[aJn accused has a fundamental right to present his own
witnesses to establish a defense,” the district court dismissed the indictment
“because the clear prejudice to defendant here requires it” (518 F.Supp. at
919). Accord, Chism v. Koehler, 527 F.2d 612 (6th Cir.), cert. denied, 425
U.S. 944 (1976); United States v. Dolack, 484 F.2d 528 (10th Cir. 1973).
54 The Solicitor General's proffer of alternative remedies — “cross-examina-
tion, argument to the jury, and [jury] instructions” (Pet. Brief 50 n.40) —
misses the point. sera nn br gmc or + gd Baa
not of the fact-finder to remedy constitutional violations.
—
denied a fair trial” (Pet. Brief 18, 50). As he applies it to the
facts of this case, the Solicitor General seems to advocate
a standard requiring concrete proof that but for the right to
counsel violation, in all likelihood the defendant would have
won an acquittal.
The standard proposed by the Solicitor General runs con-
trary to over forty years of Sixth Amendment jurisprudence.
As early as Glasser v. United States, 315 U.S. 60, 76 (1942),
the Court stated: “The right to have the assistance of counsel
is too fundamental and absolute to allow courts to indulge
in nice calculations as to the amount of prejudice resulting
from its denial.” Since Glasser, the Court has repeatedly
overturned convictions without requiring the showing of the
specific prejudice which the Solicitor General would have the
Court now demand where counsel was not provided at some
critical stage or where he was prevented from discharging his
normal functions. See, e.g., Holloway v. Arkansas, 435 U.S.
475 (1978); Geders v. United States, 425 U.S. 80 (1976);
Herring v. New York, 422 U.S. 853 (1975); Gideon v. Wain-
wright, 372 U.S. 335 (1963); Hamilton v. Alabama, 368 U.S.
52 (1961).*
We do not mean to suggest that the predicate for over-
turning convictions in these cases was not prejudice to the
accused. However, “[t]here is a difference between a require-
ment that a defendant suffer some prejudice and a require-
ment that he show some specific prejudice.” Morris v. Slappy,
103 8S. Ct. 1610, 1624 n.9 (1983) (Brennan, J., concurring).
Just as the lawyers’ conflict of interest in Holloway and
Glasser “itself demonstrated a denial of the ‘right to have
the effective assistance of counsel,’” Cuyler v. Sullivan, 446
U.S. 335, 349 (1980), respondents’ denial of assistance at a
58 Indeed, in Coleman v. Alabama, 399 U.S. 1 (1970), the Court vacated
a conviction and remanded for a determination of whether denial of counsel
at a preliminary hearing could be deemed harmless over Mr. Justice Harlan’s
vigorous dissenting view that reversal should require a showing that defend-
ants were “prejudiced in their defense at trial, in that favorable testimony
that might otherwise have been preserved was irretrievably lost” (id. at 20).
And in Holloway, where petitioner had been denied effective assistance by
a ee
stage critical to the preparation of their defense alone demon-
strates prejudice to their case. Accordingly, the lower federal
courts have never required proof of actual, specific prejudice
when the Sixth Amendment violation stems from a failure to
appoint counsel under circumstances that prevent the attorney
from discharging his or her obligation to make a thorough
investigation of the facts. See, e.g., Chism v. Koehler, 527
F.2d 612 (6th Cir.), cert. denied, 425 U.S. 944 (1976) ; United
States v. Dolack, 484 F.2d 528 (10th Cir. 1973).
There are many sound reasons for rejecting the “actual
prejudice” test developed under the Fifth Amendment as a
tool for safeguarding the right to counsel under the Sixth.
First, unlike the target of a delayed indictment, who is free to
conduct his own investigation and capable of building evi-
dence to show the adverse effects of delay to his defense, the
accused who is detained without counsel for a prolonged per-
iod pending indictment can do neither. Secondly, when the
complaint is merely preaccusation delay, the most the Govern-
ment typically can be charged with is neglect, a far lesser
offense than the Government’s breach of a constitutional ob-
ligation to provide the accused with the assistance of counsel.
Thirdly, the “Due Process Clause has a limited role to play”
in combatting oppressive delay, United States v. Lovasco, 431
U.S. 783, 789 (1977), because the paramount protection is
afforded by statutes of limitations. See United States v.
Marion, 404 U.S. 307, 322 (1971). In contrast, the right to
counsel is of critical importance in protecting the rights of an
accused. As former Chief Justice Walter V. Schaefer ex-
56 Moreover, requiring proof of actual prejudice under the circumstances
of this case would create the ironic result of favoring defendants who have
i
advice of or investigation by counsel. Where the accused has been
effective assistance by virtue of his lawyer's neglect and through no
the state, he must show some measure of prejudice, but none of the
has imposed an “actual prejudice” test as demanding and ungiving
an attorney altogether. See, ¢.g., Washington v. Strickland, 693 F.
1262 (Sth Cir. 1982) (en banc), ceri. granted, 103 S, Ct. 2451 (No.
1983) (“actual and substantial disadvantage to the course of his defense
United States v. Wood, 628 F.2d 554, 559 (D.C. Cir. 1980) (en
(“likely to have resulted in prejudice to appellant's case”).
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plained, “Of all of the rights that an accused person has, the
right to be represented by counsel is by far the most perva-
sive, for it affects his ability to assert any other rights he
may have.” Schaefer, Federalism and State Criminal Proce-
dure, 70 Harv. L. Rev. 1, 8 (1956).
Next, the “actual prejudice” standard would impose an
impossible burden on a defendant who has been deprived of
counsel’s assistance in the early investigation and preparation
of the case, particularly where the defendant has been locked
away and unable to take steps to assemble a defense himself.
As noted earlier, when an accused has been denied an oppor-
tunity to probe for evidence, proof of actual, specific and
nonspeculative prejudice is elusive, and only rarely can such
prejudice be demonstrated.” What a lawyer could have dis-
covered typically is as unknowable and as subject to “unguid-
ed speculation” as what the lawyers operating under conflicts
of interest in Holloway and Glasser would have done differ-
ently had they not suffered from divided loyalties.
Finally, inasmuch as due process protection against unwar-
ranted delay is aimed chiefly at redressing “prejudice to the
defense,” United States v. Marion, 404 U.S. at 324-25, it is
appropriate in Fifth Amendment cases to focus on whether
the impact of delay might have affected the outcome of the
case. However, the Court’s opinion in Morrison reaffirms that
the rationale of the Sixth Amendment right to counsel is much
broader: “This right, fundamental to our system of justice, is
meant to assure fairness in the adversary criminal process”
(449 U.S. at 364). Necessarily, the test under the Sixth
Amendment must be different than that under the Fifth; it
must focus not on whether the right to counsel violation
5? Indeed, our research has disclosed only three federal cases since this Court's
decision in Marion in which a defendant urging preaccusation delay has
carried his burden: United States v. Barket, 530 F.2d 189 (8th Cir. 1976);
United States v. Morrison, 518 F.Supp. 917 (S.D.N.Y. 1981); and United
States v. Wilson, 357 F.Supp, 619 (E.D. Pa.), appeal dismissed, 492 F.2d
1345 (3d Cir. 1973), rev'd on other grounds, 420 U.S. 332 (1975), aff'd
mem., $17 F.2d 1400 (3d Cir. 1976) (affirming the dismissal). The courts of
¢.g., United States v. Solomon, 686 F.2d 863, 871-72 (11th Cir. 1982); United
States v, Jackson, 504 F.2d 337, 339 (8th Cir. 1974), cert. denied, 420 U.S.
964 (1975). See also United States v. Lovasco, 431 U.S. 783, 796-97 (1977).
a te
affected the outcome of the criminal proceeding but on whether
it impaired the fairness of that proceeding. The Morrison
“substantial threat” standard is uniquely suited for gauging
the kind of prejudice that results from a right to counsel
violation, and should not be discarded for one that is not.
CONCLUSION
For all of the foregoing reasons, the judgment of the Court
of Appeals for the Ninth Circuit should be affirmed.
Respectfully submitted,
Cuartes P. Diamonp
1800 Century Park East
Los Angeles, California 90067
Telephone: (213) 553-6700
Counsel for Respondents
Robert E. Mills and
Richard Raymond Pierce
Of Counsel:
M. Ranpau OppeNnHEIMER
O’Metveny & Myers
1800 Century Park East
Los Angeles, California 90067
Epwrw S. Savi
15760 Ventura Boulevard
Encino, California 91436
February, 1984
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.