Respondents Brief — United States v. Gouveia

Office - Supreme Court, U.S.

FILED

FEB 3 a4

No. 83-128

ALEXANDER L. STEVAS.

CLERK

In The

Supreme Court of the United States

October Term, 1983

smaceey 0

UNITED STATES OF AMERICA,

Petitioner,

WILLIAM GOUVELA, et al

cli..

Ri Spoi Ji } fx,

WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

8)

BRIEF OF RESPONDENT ADOLPHO REYNOSO

Manxven U. A. Aratso

SHipLtey & Perez

900 Newport Center Drive

Suite 410

Newport Beach, California 92660

Telephone No. (714) 759-1037

wlttorney for R. sponds nt

Adolpho qh wwnOosu

CUCKLE PRINTING CO., 2311 Douglas St.. Omaha 68102

QUESTIONS PRESENTED

1. Whether, under any circumstances, a federal pris-

oner placed in administrative detention for an indeter-

minate period of time, on suspicion of committing a crime

in prison and undergoing a criminal investigation is con-

stitutionally entitled to an attorney prior to indictment?

2. Whether dismissal of the indictment is the appro-

priate remedy where an indigent federal prisoner is held

in solitary confinement for 19 months as a suspect in a

murder investigation and his requests for appointed coun-

sel are denied until he is formally indicted 20 months after

the alleged crime?

i

PARTIES TO THE PROCEEDING

In addition to the parties shown by the caption of

this case, Adolpho Reynoso, Robert Ramirez, Philip Se-

gura, Robert Eugene Mills, and Richard Raymond Pierce

were appellants below and are respondents here.

ili

TABLE OF CONTENTS

Pages

Statement 1

1. Factual Background of Respondent

Reynoso’s Case 2

2. The Decision of the Court of Appeals... Ss 6

Introduction and Summary of Argument eda oe

Argument:

I. The Sixth Amendment Requires That Coun-

sel Be Appointed For An Indigent Prison In-

mate When The Inmate Is Intentionally and

Continuously Isolated From The General

Prison Population, An Administrative Deci-

sion Has Been Made That The Inmate Is

Guilty, And He Is The Subject Of An Con-

tinuing Criminal Investigation 10

A. The Sixth Amendment Protects A Per-

son’s Right To A Fair Trial 11

B. Segregation Of Respondent From The

General Prison Population Pending A

Criminal Investigation Or Trial Is The

Functional Equivalent Of An Arrest And

Accusation 19

II. Dismissal Was The Appropriate Remedy In

The Present Case

Conclusion

SN

TABLE OF AUTHORITIES

CasEs

Chambers v. Mississippi, 410 U.S. 284 (1972) 14, 15

Coleman v. Alabama, 399 U.S. 1 (1970) —.-___-__23, 24, 26

Escobedo v. Illinois, 378 U.S. 478 (1964) 21, 29 ;

7

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TABLE OF AUTHORITIES—Continued

Pages

Hoffa v. United States, 385 U.S. 293, 310 (1966) _..._ 27

Gideon v. Wainwright, 372 U.S. 335 (1963) - nile te

Kirby v. Illinois, 406 U.S. 682 (1972) 21, 24, 26

McMann v. Richardson, 347 U.S. 759 (1970) FG 5 |

Miranda v. Arizona, 384 U.S. 436 (1965) _._.__.__3, 18, 21

Moore v. Illinois, 434 U.S. 220 (1977) 24

Powell v. Alabama, 287 U.S. 45 (1932) 12, 18, 29

United States v. Gouveia, 704 F.2d 1116 (9th Cir.

1983) 5, 6

United States v. McDonald, 456 U.S. 1 (1982) _.22, 27

United States v. Marion, 404 U.S. 703 (1971) —_9, 19, 22, 29

United States v. Morrison, 449 U.S. 361 (1981) —.27, 28, 29

United States v. Nixon, 418 U.S. 683, 709 (1974) _._ 112

United States v. Wade, 388 U.S. 218 (1968) _....__11, 12

Unrrep States ConstiruTion

United States Constitution

Amendment V 21

Amendment VI 10, 11, 19, 21, 27

_ Caitronyia Evipence Cope

California Evidence Code

Section 950 .

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No. 83-128

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In The

Supreme Court of the United States

October Term, 1983

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UNITED STATES OF AMERICA,

Petitioner,

vs.

WILLIAM GOUVELA, et al,

Respondents.

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WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—— '

_

BRIEF OF RESPONDENT ADOLPHO REYNOSO

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a

STATEMENT

This case raises the question of whether the Sixth

Amendment right to effective assistance to counsel re-

quires that counsel be appointed for an indigent prison

inmate under criminal investigation during the time that

he is held in administrative segregation as a suspect fol-

1

lowing the alleged offense, but before the filing of an

indictment.

1. Factual Background of Respondent Reynoso’s

Case

On October 13, 1978, Respondent Reynoso became an

inmate at the Federal Correctional Institution at Lom-

poc, California. On October 20, 1978, respondent was

transferred to ‘‘J’’ Unit at Lompoc. (J.A. 15)

On November 11, 1978, an inmate named Thomas

Trejo was stabbed to death in “M’’ unit at Lompoc.

There were no eyewitnesses to the murder. The body of

Trejo was discovered at approximately 4:00 in the after-

noon.

That evening, Respondent Reynoso, along with Pedro

Flores (acquitted in the first trial of all counts), was

placed in the Administrative Detention Unit (ADU) at

Lompoc, a unit segregated from the general prison popu-

lation. (J.A. 8, 10, 15, 44, 50)

As a result of his placement in ADU, Respondent

Reynoso was’ confined to a one-man cell measuring four

feet by six feet, around the clock, with the exception of

thirty (30) minutes per day. During this thirty-minute

ent was permitted one telephone call per month which

had to be made in the presence of a counselor, guard or

3

case manager. Any communication with other inmates

was prohibited. (.J.A. 17-18)

On November 21, 1978, Respondent Reynoso was in-

terviewed by agents of the Federal Bureau of Investiga-

tion (FBI). Respondent was not advised of his consti-

tutional rights under Miranda v. Arizona, 384 U.S. 436

(1965) (J.A. 15,23). Nevertheless, Respondent requested

that he be provided an-attorney. Respondent was told

by the FBI agents that he didn’t need one since he was

going to be released: the next day. (J.A. 15) During

the interview, Respondent told the FBI that on Novem-

ber 11, 1978, he watched several football games, includ-

ing one between Oklahoma and Nebraska. Respondent

told the FBI that he watched these games with inmate

Pedro Flores and a white male who resided in ‘‘J” Unit,

in cell E-18. In the early afternoon, (2:00 p.m.) he went

to the gym and worked out. He told the FBI this could

be verified by a black officer who was working in the

gym. Respondent also told the FBI that after the work-

out, he played shuffle-board with an inmate by the name

of ‘‘Sam” who resided in ‘‘C’’ Unit. (J.A. 23-24)

On November 22, 1978, Respondent, as advised by

the FBI, was released to the general prison population

and placed in ‘‘J’’ Unit. Respondent believed that he

had been cleared of the charges. (J.A. 15, 19) It is not

known if the FBI attempted to locate and interview any

of the individuals mentioned in its ‘‘Report of Interview’’

of Respondent.

4

ent has been segregated from the general prison popu-

lation at Lompoc, California. (J.A. 15)

On December 15, 1978, and again on December 21,

1478, respondent appeared before the Prison Adminis-

trative Disciplinary Committee. Respondent requested

appointment of an attorney and was denied said request.

He also requested the presence of a prison guard named

Vernel Phillips. However, no attempts were made by

prison officials to produce Mr. Phillips for the hearing.

Instead, Respondent was told that Mr. Phillips was no

longer employed by the Federal Correctional Institution

at Lompoc. No witnesses were produced at the hearing

by prison officials. (J.A. 15-16)

From December 4, 1978, until Respondent’s arraign-

ment on July 14, 1980, Respondent remained in ADU

and without assistance of counsel. No investigation was

conducted; no evidence was preserved on behalf of the

Respondent; no witnesses were interviewed; and no state-

ments were recorded.

The United States Attorney’s Office was involved

in the case as early as January, 1979. The Grand Jury

commenced its consideration of the case against Respond-

ent in March, 1979. (Tr. D. 126-128)! ’

The Government, by March, 1979, had virtually com-

pleted its investigation into the murder of Trejo. All

witnesses called before the Grand Jury, and known) to

the Government at the time of indictment, had been lo-

cated and interviewed prior to June, 1979. Dr. Gee,

who performed the autopsy of Trejo, was available to

“Tr, BY si the transcript of the pre-trial hearings in

dis chen or ten Godan maseaies

~ : 3 ~? ee Bids ade ie

Ce Ped vy +f a ec) ee ne SM) a... PUR, eae ee a le ge

the Government as early as November 11, 1978. (Tr.

147)? Richard Villalobos, an inmate, was interviewed

as a cooperating Government witness in June, 1979. (Tr.

220-221, 297-298) The principal witnesses at the Grand

Jury proceeding, including Willard Taylor, a prison in-

mate, were known and available as early as November,

1978, (Tr. 880-881) No new percipient witness became

available to the Government between June, 1979 and the

date of indictment. Virtually all scientific evidence was

completed by April, 1979. No significant investigative

activity was engaged in by the Government after June,

1979. (Tr. 393, 434)

In contrast, the defense lost the ability to develop

a qualitatively sound defense.

Although Respondent placed on the stand at his trial

two witnesses, Pedro Flores and Harlen Fergurson, who

testified that they were with Respondent in “J” Unit

watching football, no witnesses could be located who

could testify about the subsequent activities of Respond-

ent. For example, the black prison guard could not be

located to corroborate that Respondent was at the gym

in the early afternoon at approximately 2:00 p.m.—a time

within which the murder could have been committed.

This inability to locate this witness resulted despite the

_ fact that Respondent told the FBI that a black officer

working in the gym could verify that Respondent was at

the gym in the early afternoon at about 2:00 p.m. (J.A.

23) The inmate named ‘‘Sam’’, with whom Respondent

2”Tr.”” signifies the transcript of the re-trial in the case of the

Gouveia respondents.

6

told the FBI that he had played shuffle-board, could not

be located and was not produced.’

Trial began on September 15, 1980. The jury acquitted

Flores on all counts and acquitted Respondent Reynoso

on the weapon conveyance count. However, the jury was

unable to reach a verdict on the “murder and conspiracy

charges against Respondents, and a mistrial was declared

on those counts”. (J.A.1)

On February 2, 1981, Respondents resubmitted their

motion to dismiss the indictment on the ground that they

had been denied their right to a speedy trial, due process

of law, and effective assistance of counsel. The motions

were considered and denied. (Tr. D. 7-8)

2. The Decision of the Court of Appeals

The en banc Court of Appeals consolidated the Gouw-

veia and Mills cases. By a vote of six to five, it reversed

the convictions and remanded for dismissal of the indict-

ments. The Court of Appeals held that an indigent in-

mate held in admiuistrative detention beyond ninety days

for the purpose of isolating him from the general prison

population pending a criminal investigation, or trial for

a criminal act, must be afforded an attorney at Govern-

ment expense in order to preserve assurances of a fair

trial. United States v. Gouveia, 704 F.2d 1116 (9th Cir.

1983).

7

The Court reasoned that when administrative deten-

tion ‘‘is ordered as a disciplinary measure or to prevent

disorder it is indeed a matter of internal prison admin-

istration. But when used to isolate an inmate pending

trial both its purpose and effect is accusatory’’. (Pet.

App. 15a)

The Court, having concluded that the circumstances

of the present case gave rise to the right to counsel, fash-

ioned a rule which preserves the right to effective assist-

ance of counsel without impairing the authority of prison

officials to carry out their administrative responsibili-

ties. (Pet. App. 15a) The Court held that ‘‘(i)f an in-

mate is held after the maximum disciplinary period has

expired, he should be allowed to show that his detention,

at least in part, is due to pending investigation or trial

for a criminal act.’’ (Pet. App. 17a) If the inmate es-

tablishes indigency and requests counsel, “prison officials

must either refute the inmate’s showing, appoint coun-

sel, or release the inmate back into the general prison

population”. (id) The court concluded that the Govern-

ment’s refusal to appoint counsel to Respondents denied

them effective assistance of counsel and, therefore, a fair

trial. (Pet. App. 23a)

The court, having concluded that the Government’s

conduct in this case resulted in harm which pervaded

the entire trial and thus resulted in harm which was not

capable of after-the-fact remedy, concluded that Respond-

ents were in a position similar to suspects who were

denied a speedy trial. Thus, dismissal of the indictment

was the only certain remedy. (Pet. App. 20a-21la)

The court further reasoned that mere quarttity of wit-

nesses is not dispositive to the issue of prejudice. Quality

‘9

"eer ig’,

of witnesses is also a significant factor which must be

weighed. A large quantity of witnesses with faded mem-

ories creates it own prejudice due to a lack of weight euch

testimony would receive. The problem of “dimming mem-

ories of witnesses whose testimony the defense had no

opportunity to record at a time when events were fresh”

(Pet. App. 23a) was a prejudice created by the isolation

of Respondents and the concurrent refusal to appoint coun-

sel who could have preserved such testimony.

tt.

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INTRODUCTION AND SUMMARY OF ARGUMENT

The Court of Appeals held that the Sixth Amendment

requires appointment of counsel for indigent inmates held

in administrative detention for more than ninety days

pending a criminal investigation. It held further that dis-

missal of the indictment is the proper remedy for failure

to provide counsel under such circumstances.

1. Respondent was placed in the administrative de-

tention unit at Lompoc after being identified as a suspect

in a prison mufder. The Respondent was interviewed by

the FBI. Durirg the FBI interview, Respondent requested

appointment of counsel. It was denied. Approximately

six weeks after the murder, a administrative disciplinary

hearing was held. Respondent at that time requested ap-

pointment of counsel. That request was denied. |

Respondent remained in ADU from December 4, 1978

until June, 1980. He was kept in ADU beyond a ninety-

85-88). During the nineteen month period, Respondent's

9

unable to locate two witnesses who could have testified as

to Respondent’s activities during the early afternoon; a

time when the murder could have been committed. A

Michael Thompson, who the defense contended had actu-

ally committed the murder, died of natural causes before

counsel was appointed to Respondent. Other witnesses

had observable diminished memories.

Respondent argues that the right to counsel is essen-

tial to a fair trial. In a prison setting, the right to counsel

should attach in order to enable a prison inmate segre-

gated in ADU for an indeterminate period of time the

ability to preserve his defense. Only counsel may amelio-

rate the disadvantage of a segregated inmate in prepar-

ing and securing the means to present a defense at trial.

2. Respondent’s segregation in ADU was the fune-

tional equivalent of an arrest. Respondent suffered the

indicia of arrest set forth in United States v. Marion, 404

U.S. 307, 320 (1971). Had Respondent been outside prison

as a free man and subjected to an equivalent detention, the

Government could not have detained him for an unreason-

able period of time without bringing formal charges. How-

ever, in the prison context, the Government was able to

detain the Respondent for an indeterminate time without

filing formal charges. During the pre-indictment period,

the Government systematically built its case; while the

Resvondent was functionally under arrest.

The segregation of Respondent for an indeterminate —

period of time and the manner in which the Government

conducted its investigation, indicates that the Government

had committed itself to prosecute. At that point, the pros-

ecutorial forces of society were focused on the Respondent.

This committment to prosecute by the Government coupled

10

with the functional arrest of Respondent, requires that

counsel be appointed prior to indictment in order to pro-

tect Respondent’s right to a fair trial.

3. The remedy of dismissal was appropriate in Re-

spondent’s case due to the presence of actual prejudice.

Respondent lost the resources to present a complete de-

fense. Two witnesses could not be identified and located

who could testify as to the activities of Respondent in the

early afternoon on the day of the murder. This was criti-

eal because the murder could have occurred in the early

afternoon. Additionally, the Respondents demonstrated

that their witnesses did in fact have poor memories as to

the events of November 11, 1978—the date of the murder.

— =

Vw

ARGUMENT

I. The Sixth Amendment Requires That Counsel Be

Appointed For An Indigent Prison Inmate When The

Inmate Is Intentionally And Continuously Isolated

From The General Prison Population, An Adminis-

trative Decision Has Been Made That The Inmate Is

Guilty, And He Is The Subject Of A Continuing Crim-

inal Investigation.

The Court of Appeals decision achieves a proper bal-

ance of interests of both prison officials and inmates sus-

pected of crime. It does not prohibit the prison system

11

in order to insure effective assistance of counsel and there-

by a fair trial, counsel be appointed to those inmates who

are continuously segregated from the general prison popu-

lation, who have been kept in segregation for more than

ninety (90) days, and are the subject of a continuing crim-

inal investigation or are pending tiral. (Pet. App. 14a-

18a).

The underlying rational for the Court of Appeals

holding is to assure that the accused will receive effective

assistance of counsel by providing counsel at a point in

time when he can be effective in preserving a defense.

(Pet. App. 16a)

A. The Sixth Amendment Protects A Person’s

Right To A Fair Trial.

The right to counsel is more than mere formalism; it

is central to the right to a fair trial. The right goes be-

yond the attorney’s mere presence at formal judicial pro-

ceedins . McMann v. Richardson, 347 U.S. 759 (1970).

The concept of the right to counsel:

“... is central to that principle that . . . the accused

is guaranteed that he need not stand alone against

the State at any stage of the prosecution, 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 .. .”

United States v. Wade, 388 U.S. 218, 226-27 (1967).

Counsel is an instrument utilized to insure the right

to a fair trial. Therefore, not only must counsel be pro-

vided 1) an indigent person at the trial of a criminal pros-

>

——

12

ecution, Gideon v. Wainwright, 372 U.S. 335 (1963), but,

counsel must be appointed at a point in time when counsel

can be effective in preserving the right to a fair trial.

United States v. Wade, 388 U.S. 218, 226-27 (1967); Pow-

ell v. Alab« ma, 287 U.S. 45 (1932).

This Court, in Powell v. Alabama, stated that the duty

to appoint counsel:

“is not discharged by an assignment at such a time

or under such circumstances as to preclude the giving

of effective aid in the preparation and trial of the

case.”

Appointment of an attorney at a meaningful stage

after the Government has detained an inmate-suspect in

ADU, due to a continuing criminal investigation, or for

trial, is necessary to provide a defendant with the means

to prepare and preserve his version of the facts at trial.

Without the means to preserve, and thus present his case,

the adversary system’: entire integrity becomes suspect.

Where the defendant is unable to fully present his case,

the adversary system becomes a one-sided proceeding in

which only the Government is in a position to develop

and present its case.

That the defendant must have a fair opportunity to

present his evidence to the trier of fact is a cornerstone

of the adversary system of criminal justice. In United

States v. Nixon, 418 U.S. 683, 709 (1974), the court ad-

dressed this issue:

We have elected to employ an adversary system of

criminal justice in which the parties contest all issues

before a court of law. The need to develop all rele-

vant facts in the adversary system is both fundamental

and comprehensive. The ends of criminal justice

13

would be defeated if judgments were to be founded

on a partial or speculative presentation of the facts.

The very integrity of the judicial system and public

confidence in the system depend on a full disclosure

of all the facts, within the framework of the rules of

evidence.

The Petitioner appears to suggest that the Respond-

ent’s production of two alibi witnesses is dispositive of

the issue of prejudice created by the absence of counsel.

(Pet. Br. 56-58) What the Petitioner fails to recognize

is that it is the quality of witnesses that determine law-

suits, not mere numbers. Additionally, the ability to pre-

sent a small portion of the facts does not equal an effec-

tive defense.

The Respondent was able to present to the jury evi-

dence of his activities on the mgrning of the murder. How-

ever, no evidence was produced as to his activities during

the early afternoon of the same day. This was critical

because the time of death was approximated to have oc-

curred between 12:00 noon and 1:00 p.m., with a range

of one hour in either direction. (Tr. 160, 162-63) That

is, the murder could have occurred at 2:00 p.m., if not

later. Respondent told the FBI on November 21, 1978,

that in the early afternoon at about 2:00 p.m. he was in

the gym playing shuffel-board with an inmate named

“Sam” from “C” Unit. He told the FBI that the above

fact could be verified by a black guard who was in the

gym. (J.A. 15, 23-24)

Respondent was unable to either identify or produce

the black guard from the gymnasium. The guard could

have testified that in the early afternoon he had seen the

Respondent at the gym. Respondent was also unable to

14

locate the inmate named Sam, who could have testified

that in the early afternoon, at approximately 2:00 p.m.,

he was playing shuffle-board with the Respondent. These

individuals were not fabrications by Respondent months

after the murder. The existence of these individuals as

potential witnesses for the defense was made known to

agents of the Government as early as November, 1978.

(J.A. 23-24) To summarize, Respondent was able to pro-

duce two witnesses who could account for a portion of the

time at which the murder could have occurred, but not for

all of the time. The inability to produce reliable evidence

as to a portion of the critical time made the defense far

less persuasive than it would have been if the defense

had been able to identify and produce the above-mentioned

persons. See Chambers v. Mississippi, 410 U.S. 284 (1972).

The mere opportunity to present some evidence as

to a fact in dispute is insufficient if a defendant is pre-

cluded from presenting additional evidence which, if be-

lieved, would make the defense far more persuasive. Cham-

bers v. Mississippi, id. In Chambers v. Mississippi, the

Court held that the trial court’s refusal to allow testimony

of three impeachment witnesses constituted reversible er-

ror. The Court held that the exclusion of the witnesses

made the defense far less persuasive, and, therefore, the

defendant had been denied due process of law. The Court

reversed the conviction even though the defense had pro-

duced substantial evidence in support of its defense theory.

As in Chambers, the issue is not whether the Respondent

was able to produce some portion of the evidence in sup-

port of his defense, but whether he was denied the right

to produce a persuasive defense.

15

The failure of a defense counsel to present important

evidence due to incompetency is no more prejudicial to a

defendant than the failure to present that same evidence

due to its unavailability to defense counsel. If a defend-

ant can not present a sound defense, due to his inability

to preserve evidence, is he any less harmed in his defense

than the defendant in Chambers v. Mississippi, who was

not permitted to produce all the relevant evidence which

was available? The answer must snrely be that the denial

of a fair trial is the same to a defendant whether the de-

nial is the result of incompetency of counsel, an incorrect

ruling of the trial court, or the inability of counsel to pre-

sent evidence which has been forever lost.

Petitioner attempted to minimize the effect of the ab-

sence of counsel on the Respondent’s ability to preserve

and present an effective defense. The denial of a fair trial

was a result of what counsel was unable to do because of

the lengthy pre-indictment period. Contrary to the Peti-

tioner’s contention (Pet. Br. 58), there was substantial

prejudice to the Respondent due to his loss of witnesses

and the low reliability of defense witnesses resulting from

their demonstrated poor memories.

The Respondent’s affirmative defense was that Mi-

chael Thompson and two Government witnesses—Steve

Kinard and Willard Taylor—had committed the murder

of Trejo. While Steven Kinard and Willard Taylor ad-

mitted assisting in the murder by disposing of the murder

weapons, they denied any association with Michael Thomp-

son (Tr. 2096-2111, 2222-2232, 2483-2495)

A witness was called in an effort to establish that

Michae! ‘Thompson had in his possession, on the date of

16

the murder, a bundle that appeared to contain steel knives.

That witness, Tony Estrada, had a demonstrably faded

memory. In this regard, the trial court itself made the

following observation:

THE COURT: Well, the Court has to rule as it sees

fit, using its discretion. This witness’s memory is at

best a faded pastel of what was once a brilliant pic-

ture. Whether it ever encompassed the name of the

decedent, his nickname, the fact that anybody had

been put in segregation, is of extreme doubt to the

Court. And I think because of the fact his recollection

is so deficient in so many areas, that there must be

2 specific demonstration of when this event occurred.

Now, that’s the foundation that’s necessary. If that’s

made, then these matters are admissible. That will

be the ruling of the Court. (J.A. 117)

Clearly, this witness’s lack of memory clouded his re-

liability and, therefore, his credibility. The fact that Mi-

chael Thompson had a set of knives on the date of the

murder could not be convincingly proven.

Faded memory was also demonstrated by a number

of other witnesses, including Antonio Palacios, (J.A. 93-

98) Raymond Olvera, (J.A. 98102) and Stephen A.

Broughton. (J.A. 102) As to each of these witnesses,

the prosecution’s line of cross-examination was to dem-

onstrate a lack of certainty and a lack of recollection as

to their testimony. (J.A. 94-97, 100-102, 105, 107-108)

It was also demonstrated by Mr. Broughton that this lack

of recollection was due to both the passage of time and

the fact that the witnesses made no efforts to record

their recollections. (J.A. 105) Additionally, no one on

behalf of the Respondent contacted them in 1978 or even

1979 to take statements and attempt to preserve their

memory of the events occurring on November 11, 1978.

17

Michael Thompson, the person the defense contended

was (along with Government witnesses Kinard and Tay-

lor) involved in the murder, died of natural causes in

June of 1979. The death of Michael Thompson denied

Respondent the opportunity to call Thompson as a hos-

tile witness and have him subjected to cross-examination.

Since an attorney was not appointed to represent Re-

spondent until after the death of Thompson, his testi-

mony was not preserved. Thus, Respondent was frus-

trated in his attempt to demonstrate to the jury that

Thompson was one of the murderers, along with Kinard

and Taylor.

The deficiencies of the Respondent’s affirmative de-

fense occurred despite the fact that Respondent adopted

a course of conduct consistent with the remedies sug-

gested by the Petitioner. (Pet. Br. 36-39) That is, Re-

spondent told the FBI about his witnesses. That the

statements of Respondent were préberved by the FBI

has never been in dispute. However, the mere preserva-

tion of the statement did not enable Respondent, some

twenty months after the murder, to locate either the in-

mate named “Sam” or the black guard who was at the

gym.

Respondent’s situation demonstrates the hollowness

of Petitioner’s bare assertions that an inmate-defendant

held in segregation pending criminal ‘investigation or trial

may preserve a defense by surrendering his right against

self-incrimination. Respondent gave up that most basic

of rights on November 21, 1978, but it was not enough to

preserve a critical portion of his defense.

The Petitioner’s suggestion that if Respondent want-

ed to prepare a defense he should have used a ‘‘staff

18

representative’’ is contrary to the most basic and long

recognized right against compulsory self-incrimination.

Miranda v. Arizona, 384 U.S. 436 (1966). The Petitioner

ignores the fact that the staff representative is a gov-

ernment employee and that there is no attorney-client

privilege. Petitioner’s position that an innocent inmate

would not reasonably fear that the information given to

staff member would be used against him indicates a

naivette about the adversary positions of the Respondent

and the Government (and its agents). Petitioner surely

does not seriously contend that a staff representative

could decline to testify against a defendant on the grounds

of attorney-client privilege.‘ Whether the staff repre-

sentative does or does not desire to act as a spy is im-

material, since the prosecutor can make him a spy merely

by asking, ‘‘ What did he tell you?’’

The remedies suggested by Petitioner are simply un-

constitutional. Further, they can not provide ‘‘the guid-

ing hand of counsel’’ that the Court in Powell v, Alabama,

287 U.S. 45, 49 (1932) found essential.

The record reflects that Respondent was denied a

fair trial due to the absence of counsel at a time when

he was segregated from the general prison population.

The issue remains whether he was entitled to appoint-

ment of counsel prior to the Government’s filing of the

indictment.

19

B. Segregation Of Respondent From The Gen-

eral Prison Population Pending A Criminal

Investigation or Trial is the Functional Equiv-

alent of an Arrest and Accusation.

Petitioner concedes that Respondents were kept in

administrative detention because of the pendency of the

criminal investigation regarding the murder they were

suspected of committing. (Pet. Br. 26) The United

States Attorney’s office was involved in the criminal in-

vestigation as early as January, 1979. (Tr. B. 128) The

Grand Jury was considering evidence as early as March

1979. (Tr. B. 128) In reality, the Respondents were

held in segregation for an indeterminate period of time.

The Court of Appeal recognized that ‘‘whether a

person stands accused can only be determined from the

totality of the circumstances.” (Pet. App. 8a) Under

the circumstances of this case, the segregation of Re-

spondent was accusatory; it was a ‘‘public act’’ which.

was functionally equivalent to an arrest. (Pet. App. 15a)

In United States v. Marion, 404 U.S. 307, 320 (1971), this

court set forth the constitutionally significant indicia of

arrest for purposes of triggering the Sixth Amendment

right to a speedy trial:

‘« .. . Arrest is a public act that may seriously in-

terfere with the defendant’s liberty, whether he is

free on bail or not, and that may disrupt his employ-

ment, drain his financial resources, curtail his asso-

ciations, subject him to public obloquy, and create

anxiety in him, his family, and his friends.

Each of the Marion incidents of arrest are present

in this case where Respondent was placed in a ‘‘prison

within a prison’. Respondent’s detention deprived him

of the privileges, jobs, and activities of the general prison

20

population; deprived him of all contact with the general

prison population; stigmatized him in the eyes of the

prison population; subjected him to possible inmate re-

taliation; created in him, his family and friends justifi-

able anxiety; and precluded him from preparing a de-

fense. (JA 15-20)

The Court of Appeals reasoned that where an in-

mate is isolated, pending a criminal investigation or trial

for a criminal prosecution, the detention is related to

the subsequent prosecution. Additionally, the detention

under such circumstances:

[F]Jurthers many of the same governmental interests

served by an arrest outside the prison walls. The

Supreme Court has recently recognized that confin-

ing inmates to administrative detention pending com-

pletion of the investigation of disciplinary charfes

serves the important need of investigative officers

to protect witnesses and evidence, to facilitate an

effective investigation, and to prevent further crim-

inal activity by the suspect. Hewitt v. Helms, 103

S.Ct. 864 (1983). These interests are important for

nonprison crimes and in that situation they lead to

an arrest at the earliest possible point. But they

are important also for serious prison crimes where

the insular character of the inmate population cre-

ates unique investigatory and evidentiary hurdles for

the prosecution and leaves potential witnesses par-

ticularly vulnerable to retribution and coercion. The

critical fact is that for prison crimes the Govern-

mental interests that dictate the isolation of sus-

pects do not lead to an arrest, nor prompt the early

initiation of formal judicial proceedings, but rather

cause the isolation of suspected inmates in adminis-

trative detention for what can be an indeterminate

period. (Pet. App. lla)

21

Respondent’s detention under the facts of their case

amounts to the functional equivalent of an arrest and

accusation,

Petitioner argues that even assuming that Respond-

ent’s situation is similar to an arrest, it is not detention

by law-enforcement authorities that triggers the right to

counsel, but rather the decision by prosecutors to initi-

ate forinal adversary judicial proceedings.’ (Pet. Br. 29)

The Petitioner further states:

The Court of Appeals invoked cases involving the

Sixth Amendment right to a speedy trial in support

of its arrest analogy. (Citations) But the decisions

in those cases make clear that the speedy trial right

is not triggered merely by arrest or detention; in-

stead both arrest and holding to answer a criminal

‘The petitioner's cone relying on Kirby v. Illinois, 406

U.S. 688 (1972) (Plurality decision) that counsel attaches on/y

at or after the time that adversary judicial proceedings have

been initiated against an accused, and that initiation of ad-

versary judicial proceedings are limited to formal charge, pre-

liminary hearing, indictment, information or arraignment (Pet.

Br. 19-21) is not supported by an examination of this court's

decision which continue to enjoy constitutional force.

Right to appointment of counsel is not dependent upon

the initiation of formal judicial proceedings. Both Escobedo

v. Illinois, 378 U.S. 478 (1964) and Miranda v. Arizona, 384

U.S. 436 (1966), involve situations in which no formal judicial

proceedings, as deliniated in Kirby v. Illinois, had occurred.

Although, the plurality in Kirby stated that the Pagnell

of Escobedo and Miranda was not intended to vindicate the

Sixth Amendment right to counsel, but rather to ensure full

effectuation of the Fifth and Fourteenth Amendment privile

against compulsory self-incrimination (which if waived might

render any subsequent trial a mere formality), 406 U.S. at 688,

689. Miranda and Escobedo continue to .require that when

an 9 individual is in custody and that individual re-

quests presence of counsel, he must, if indigent, be pro-

vided with counsel before any interrogation may take place.

22

Steme ‘a phich is necessary if authorities are to con-

gage the pld a suspect) are required in order to en-

(Pet. Br, ight to a speedy trial. (Emphasis added).

- 30)

Petitioner,

456 U.S. 1, 7 s reliance on United States v. McDonald,

ited States v. ion,

oe = Merion x

trial right is r

set ten ot triggered merely by arrest or detention

ut a d oth arrest and holding to answer a crim-

} mig 3 tT; ger such right ignores United States v.

Marion’s own

language, which states in part:

So viewed it is readily understandable that it is

m0 a as °rmal indictment or information or else the

restraints imposed by arrest and holding to

protection: Tminal charge that engage the particular

' a — the speedy trial provision of the Sixth

Invocation p Pe

not await of the speedy trial provision thus need

as p indictment, information, or other formal

ge. “ut we decline to extend the reach of the

amendmen: +, the period prior to arrest. Until this

+ OCCU; a citizen suffers no restraints on his

berty aq is not the subject of public accusation:

his situatiy,, does not compare with that of a de-

fendant Who has been arrested and held to answer.

404 U.S. a: 399.321. (Emphasis added).

The Court in United States v. Marion and United

States v. McDonald assumed that a person could not be

held under artost for an indefinite period of time with-

out the filing ¢¢ charges. Petitioner concedes as much.

What mak... this case unique is that the Government

was able to boty detain and continue to hold the suspect

for an indeterijinate period of time without filing formal

charges. In Réspondent’s case, the Government was able

to segregate hin, from the general prison population and

23

subject him to all the indicia of arrest for an indetermin-

ate period of time without the necessity of filing criminal

charges. During the twenty month period the Govern-

ment built its case. During the same period, the ability

of the Respondent to preserve his case eventually faded

away.

The right to counsel should not be dependent upon

the decision of a prosecutor as to when to file an indict-

ment. The right to counsel should attach at the point in

time when it is clear that a person is being detained for

an indeterminate period of time as a suspect in a crim-

inal investigation.

The Court of Appeals’ determination in this case is

correct for the additional reason that the Government’s

actions evidenced a commitment to prosecute. A commit-

ment to prosecute can occur at a time prior to the formal

filing of charges.

This Court in, Coleman v. Alabama, 399 U.S. 1 (1970)

(plurality decision), held that, even though no formal

charges were pending at the time of the preliminary hear-

ing and even though the accused had not yet been held

to answer charges (since the grand jury had not at that

time indicted), the accused was entitled to appointment

of counsel at the preliminary hearing. Counsel was re-

quired even though the preliminary hearing magistrate

could not indict, but could merely make a determination

that further inquiry by the grand jury was warranted.

399 U.S. at 24 (C.J. Burger dissent) At the time of the

preliminary hearing, the State had committed itself to

prosecute, even though no formal charges had been filed.

A plurality of the Court required counsel because the

24

preliminary hearing is a “critical stage” of the criminal

process. 399 U.S. 9.

The Court in Coleman went on to explain that even

though the state was precluded from introducing testi-

mony given at a pre-trial proceeding, where a defendant

did not have benefit of counsel, and even though the de-

fendant did not risk loss of defense not asserted at the

preliminary hearing, counsel was necessary to safeguard

against “potential substantial prejudice to defendants

rights” to a fair trial. The benefit of counsel is required

under Coleman even though the state could, after the pre-

liminary hearing, decide against seeking indictment, or

even though a judiciul officer could determine that fur-

ther inquiry by the grand jury was not necessary.

In Moore v. IUinois, 434 U.S. 220 (1977), a case fac-

tually similar to Coleman, this Court held that the prelim-

inary hearing marked the initiation of adversary judicial

criminal proceedings where a citizen’s complaint had been

filed and the accused was subjected to a preliminary hear-

ing. In Moore, id. at 228, the court concluded that the

time at the preliminary hearing the state had committed

itself to prosecute.

However, no formal charges by way of information,

or indictment had been brought, and the Government

could have abandoned prosecution at any time, prior to

indictment. In both Coleman v. Alabama, and Moore v.

Illinois, the state was represented by counsel, though it

had not filed formal charges. As the court in Kirby v.

Illinois, 406 U.S. at 689, stated, the initiation of adversary

judicial criminal proceedings is far from a mere formal-

ism. “It is only then that the Government has committed

itself to prosecute, and only then that the adverse posi-

25

tions of Government and defendant have solidified . . .”

ibid.

In Respondent’s case the Government manifested its

commitment to prosecute by holding Respondent indeter-

minately segregated in ADU due to a criminal investiga-

tion; by its commencing of Grand Jury proceedings in

March, 1979; and by the intimate involvement of the Unit-

ed States Attorneys Office as early as January, 1979.

This commitment to prosecute was further manifested

by the Government’s indictment of Respondent despite

the fact that all addititonal invesigation conducted after

June 1979 was negative as to Respondent.®

It is fiction in this case to contend that the Govern-

ment had not committed itself to prosecute prior to June

1980. To uphold the Petitioner’s position that the Govern-

ment has only committed itself to prosecute after an in-

dictment was filed, creates a fundamentally unfair situa-

tion which allows a suspect to be indeterminately detained,

while the Government at its leisure prepares its case for

trial.

‘The Government had available by December 26, 1978,

with the tion of one witness who became available in

June, 1979, all the witnesses that it used to obtain an indict-

ment in June, 1980. For example, Willard Taylor was available

in early November, 1978, Armando Macias was available No-

vember, 1978; Edward Chaparro was available December 26,

beg he The one exception Richard Villalobos became available

n June,

we scientific — was virtual

1979. The blood and footprint phon A a ai in

April, 1979. (Tr. 393, 434) The autopsy analysis was com

in November, 1979. (Tr. “‘¢ Initial fingerprints was

~*~"

26

The Government in the present case, as the prosecution

in Coleman v. Alabama, 399 U.S. 1 (1970) and Moore v.

Illinois, 434 U.S. 220 (1977), committed itself to prosecute

before the formal charges were filed. The fact that the

Government could theoretically have decided not to file

charges is unpersuasive in light of the indeterminate de-

tention of Respondent which had all the indicia of arrest.

Petitioner’s reliance on Kirby v. Illinois, 406 U.S. 682

(1972) for the proposition that Respondent’s right to coun-

sel in the context of the facts of this case attaches only

after indictment ignores the fundamental distinction be-

tween the facts of Respondent’s case and those in Kirby.

In Kirby, a suspect was arrested by police officers. The

police conducted a station house identification procedure

to determine if the victim could identify him as the robber.

At the time of the identification procedure no prosecuting

attorney participated, no grand jury was considering for-

mal charges, and no attorney for the prosecution was sys-

tematically developing a case against the suspect.

The facts of Respondent’s case more closely resemble

those of Coleman v. Alabama, 399 U.S. 1 (1970) than those

of Kirby v. Illinois, id. The Government attorney had a

continuing interest in the prosecution of Respondent. Re-

spondent was detained for an indeterminate period as a

suspect pending the criminal investigation.

The Petitioner’s position that right to appointment of

Counsel in a prison setting and under the circumstances

of this case be determined solely by the filing of an indict-

ment is to leave the triggering of that right, and its con-

sequent right to a fair trial, totally in the hands of the

prosecution, without regard to the fact that it has in

27

reality committed itself to prosecute. It is apparent that

the Government intended to prosecute. The theoretical

possibility that it might not may be sound analysis where

a person is not subject to the indeterminent curtailment

of liberty, see Hoffa v. United States, 385 U.S. 293, 310

(1966) ; and, United States v. McDonald, 456 U.S. 1 (1982),

but it should not apply where a defendant is held in an

indeterminate segregation status amounting to the func-

tional equivalent of arrest and accusation.

The Ninth Circuit opinion is consistent with the con-

cept of effective representation of counsel. At the same

time, the Ninth Circuit’s opinion is nevertheless narrow in

scope. It requires a number of pre-conditions to exist be-

fore the right to appointed counsel attaches. The inmate

must be in isolation from the prison population; he must

be in isolation beyond a ninety (90) day period; he must

be detained in isolation at least in part due to a felony

investigation or for criminal trial; and he must be indi-

gent. The Government is not obligated to provide counsel

if the inmate is not indigent, nor is counsel required if he

is in isolation due to purely administrative reasons. Ad-

ditionally, the inmate in isolation must request the ap-

pointment of counsel. The rule provides the flexibility

needed to accommodate legitimate administrative concerns,

while at the same time assuring the inmate a fair trial.

II. Dismissal Was the Appropriate Remedy in the Pres-

ent Case.

This Court, in United States v. Morrison, 449 US.

361, 365 (1981), stated that the remedy for Sixth Amend-

ment deprivations should be tailored to the circumstances,

so as to assure the defendant effective assistance of coun-

28

sel and a fair trial. The Court in United States v. Morri-

son, supra, did not find adverse effect on the right to ef-

fective assistance of counsel by the mere fact that Drug

Enforcement Agency agents attempted to solicit the de-

fendant’s cooperation without the presence of her attor-

ney. In the present case, however, the Ninth Circuit rec-

ognized that Respondent’s isolation without assistance of

counsel handicapped Respondent’s ability to defend him-

self at trial. (Pet. App. 23a)

The Ninth Circuit further recognized that:

“Prison crimes present suspects with unique inves-

tigatory and evidentiary obstacles. And, to repeat,

the passage of time greatly exacerbates these diffi-

culties. The length of the delay in appointing counsel

for appellants who were likewise denied the opportu-

nity to take measures to preserve their own defense

means that the critical initial stage of investigation

was forever lost to appellants.” (Pet. App. 20a)

The prejudice suffered by the inability to locate in-

mate witnesses (whose names are not known); the inabil-

ity to produce witnesses whose recollection of events are

preserved by written statements; and the loss of witnesses

due to death, are not within the class of prejudice that

can be cured by a cautionary instruction to a jury, or by

suppressing the introduction of Government evidence. The

prejudice pervades the entire trial.

The dissenting opinion’s contention, adopted by F'e-

titioner, that “the likelihood of exonerating testimony

from absent witnesses is preeminently a factual matter for

the jury’s determination . . .” (Pet. App. 28a-29a), fails to

recognize the impossibility of introducing into evidence

the expected testimony of a dead witness who has never

29

either testified or been interviewed. At the district court

level such exonerating testimony from Michae] Thompson,

a deceased witness, was rejected by the trial court. An ad-

mission by Michael Thompson that he, along with Steven

Kinard and Willard Taylor, had killed Thomas Trejo was

rejected as untrustworthy hearsay. (Tr. 2096-2111)

The dissent’s remedies fail to deal with the basic issue

of fairness. It excuses indeterminate detention, unjusti-

fied delay by the Government (and the real advantage it

thereby gained), and suggests that competent and vigor-

ous counsel! could not have assisted in the preservation of

a defense if appointed some thirteen monthes earlier. The

dissent also equates effective assistance of counsel with

technically competent counsel. It fails to recognize, as

this court recognized in Powell v. Alabama, 287 U.S. 45

(1932) ; Escobedo v. Illinois, 378 U.S. 478, 487-488 (1964) ;

and, United States v. Marion, 404 U.S. 307, 327 (1971);

that appointment of counsel to one accused must come at

a point in time where counsel can be effective. The most

competent of counsel can not raise the dead, restore lost

memories, or locate those whose names are no longer

known or capable of being known.

The Ninth Cireuit majority recognized the particular

need of an indigent inmate who has been isolated pending

a criminal investigation for the appointment of counsel.

It recognized that the defense had been permanently handi-

capped by the long delay and the concurrent failure to

appoint counsel. Unlike the facts present in United States

v. Morrison, supra, respondents were prejudiced by the

absence of counsel at a critical stage in the proceeding.

The result reached by the Ninth Cireuit was warranted

under the facts of the case.

30

CO “LUSION

Based on the foregoing, the respondent Adolpho Rey-

noso urges that the Government’s Petition be denied.

Respectfully submitted,

Manvet U. A. Aravso

Suretey & Perez

Attorneys for Respondent

Adolpho Reynoso