Respondents Brief — United States v. Gouveia

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No. 85-12 * —

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF RESPONDENT PHILIP SEGURA

Joe. Levis

STILZ, B Li

2049 Century P

Los Angeles, C;

(215) 277-6844

Court-anpointed Co 1

Philip Segura

PRESS OF BYRON S ADAMS PRINTING, INC. WASHINGTON |

i

ISSUES PRESENTED

1. Whether the Sixth Amendment requires appoint-

ment of counsel before indictment for an indigent prison

inmate who is in administrative detention while under

criminal investigation for a serious crime committed in

prison. |

2. Whether there was warranted a presumption of

prejudice or showing of an actual prejudice or threat of

prejudice to warrant dismissal of the indictment as the

appropriate remedy for the deprivation of the Sixth

Amendment right to counsel to such a prison inmate?

ii

TABLE OF CONTENTS

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B. Investigative History Of The Case 4

C. Procedural History Of The Case 7

SUMMARY OF ARU Err 10

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A. The Ninth Cireuit Court Of Appeal's Decision

Requiring That Counsel Be Appointed For An In-

2 Prison Inmate Who Has Been Held Beyond

Pending Investigation Or Trial For A Criminal Act

e v or imi et

Is A Natural Extension Of This Court’s Teachings. 11

A Felony Or Trial For A Criminal Act ..... 12

2. The Respondent Was Denied The Effective As-

sistance Of Counsel At A “Critical” Pretrial

T A ˙ A ooacanests 19

3. The Decision Below Is A Logical Extension Of

The Right To Counsel Guarantee And Protects

Indigent Inmates In An Area Previously Sub-

_ ject To Overreaching By The Prosecution... 22

. Dismissal Of The Indictment ä

Remedy To Neutralize The Prejudice ered By

J seaedwnicscuksmahenset 25

n 27

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iii

TABLE OF AUTHORITIES

CASES: Page(s)

Coleman v. Alabama, 399 U.S. 1 (1970) ............. 19

Kirby v. Illinois, 406 U.S. 682 (1972) .......... 14, 15, 16

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..... 19

United States v. Ash, 413 U.S. 300

1 12, 13, 14, 16, 20, 25

United States v. Decoster, 624 F. 2d 196 (D. C. Cir.

% ðᷣͤ —— can deleused sens 21

United States v. Duke, 527 F.2d 386 (5th Cir. 1976) .. 24

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

ah 9, 11, 15, 18, 22, 23, 26, 27

United States v. McLemore, 447 F. Supp. 1299 (E. D.

CL „

United States v. Morrison, 449 U.S. 361 (1981) . 25, 26, 27

United States v. Wade, 388 U.S. 218

TEE 6400S bo ha bvnedbuseesuee 12, 13, 14, 17, 19, 20

Wolff v. McDonnell, 418 U.S. 539 (1974) ............ 15

STATUTES:

SP Se EEE CMD cc ccdcvccvababesswebesetaas 18

e 18

,, ⅛ AAA 8 23

OTHER: ;

ABA Standards § 4.1 (2d ed. § 4. 1777777 21

U.S. Constitution Amend. Ins... 12

STATEMENT

A. Facts Of The Case

On November 11, 1978, an inmate named Thomas Trejo

was stabbed to death in a cell at the Federal Correctional

Institution of Lompoc, California. The death resulted

from 45 separate stab wounds inflicted on his body with

two different instruments. (R. T. 149-154)

According to the testimony of an inmate named Steven

Kinard, who had originally been named as a co-

conspirator to this murder, but who agreed to testify for

the Government in exchange for a plea bargain to a re-

duced charge (which was later dismissed), Respondent

Segura, along with Adolpho Reynoso, Robert Ramirez,

William Gouveia and numerous other Mexican inmates,

planned the murder of Thomas Trejo for several days

prior to its perpetration. According to this same inmate’s

testimony, following the death of Thomas Trejo, the same

defendants and conspirators discussed the details con-

cerning how they had accomplished the murder of Thom-

as Trejo. Mr. Kinard further testified that he was asked

by Defendant William Gouveia and another inmate

named Willard Taylor to dispose of the murder weapons

which had been used to kill Thomas Trejo and that he did

in fact cooperate with these individuals to dispose of the

weapons. (R.T. 531-562)

The Government also produced the testimony at the

second trial of an inmate by the name of Gene Newby,

who testified that, just following the time Mr. Trejo was

murdered at the Federal Correctional Institution at Lom-

poc, Newby was in a cell with other prisoners when a

R. T. refers to the Reporter’s Transcript of the trial from which

the appeal of the judgment of conviction was taken.

2

conversation ensued between those other prisoners and

the defendants on trial. Newby testified that the defend-

ants acknowledged they had killed Thomas Trejo and

then they began disposing of the clothing they had worn

during the murder, which has been stained with blood.

(R.T. 1007-1031, 2433-2469)

The Government also produced at trial expert testi-

mony that a shoeprint found on a locker in the cell where

Mr. Trejo was murdered appeared similar in size, design

and degree of wear to the shoe worn by appellant Segura

several weeks after the murder. (R.T. 404-428) In addi-

tion, fingerprint identification on a sheet of paper at the

murder scene established that the fingerprints of appel-

lant Segura and defendant William Gouveia were on the

sheet of paper. (R.T. 440-449)

Each of the defendants in both trials offered the de-

fense of alibi to the charges against them.“ In defense of

Respondent Segura, he produced evidence both through

himself and other witnesses that on the morning of the

murder, prior to its alleged commission, he was busy

playing handball in the prison recreation yard. (R.T.

1609-1612, 1594-1597) At the same time, inmate Kinard

had testified that Segura and others were walking the

prison track planning the murder of Thomas Trejo. (R.T.

509-513) During the critical hour that the murder was

actually committed, Respondent Segura produced evi-

dence that he was in the dormitory unit of the prison

where he resided, which was a different unit from the one

in which Mr. Trejo was murdered, watching a football

No effort is made herein to specifically outline the proof offered by

the Government against Respondent Segura’s co-defendants,

Reynoso, Ramirez and Gouveia.

See Joint Appendix, (p. 42)

3

game with other inmates. This testimony also showed

that Respondent Segura remained continuously in his

own unit until well after the murder of Thomas Trejo had

occurred. (R.T. 1566-1570, 1577-1583, 1762-1771, 2147-

2150)

With respect to the shoeprint found in the murder cell

locker, Respondent Segura testified and produced fur-

ther evidence that he arrived at Lompoc just two weeks

before the murder and thereafter developed a foot prob-

lem and was issued a pair of Hushpuppy shoes, which

were different from the prison issue shoes which were

found imprinted on the locker where Trejo was found.

(R.T. 2152-2153) The person who brought him the Hush-

puppy shoes to wear from the prison supply section cor-

roborated this as did the medical records of Respondent

Segura from his prison file at the Federal Correctional

Institution at Lompoc. (R.T. 1769, 2152) '

With respect to the fingerprint on the sheet of paper in

the cell where Thomas Trejo was found murdered, Re-

spondent Segura offered testimony that in the immediate

past (the last two weeks before the murder) he had been a

resident of that unit where Mr. Trejo’s body was found

and that Segura had from time to time utilized stationery

and touched various pieces of stationery located within

the unit. (R.T. 2141)

In addition to the defenses of alibi offered by each of the

defendants, several witnesses called by the defense testi-

fied that inmate Steven Kinard had told them, in the

interval between the two trials of this case, that he

(Kinard) and another inmate whose name was Michael

Thompson had actually murdered Trejo. (R.T. 1883,

2061, 2209, 2554)

4

In addition, the defense offered the testimony of an

expert in the science of hair examination, from the FBI

Laboratory in Washington, who testified that, at the time

of the death of Thomas Trejo, numerous Caucasian hairs

were discovered on the garments worn by the decedent

and the blanket which was covering his body. Numerous

Mexican-type hairs, which could have matched appel-

lant’s Segura’s or the other defendants, were found in the

same locations, but none of them matched any of the

defendants who were charged with the murder. (R.T.

1389-1407) The inmate named Michael Thompson, who

died just prior to the indictment being returned in this

case, was a blond Caucasian.

B. Investigative History Of The Case

Since the issue before this Court involves claims of

prejudice resulting from the pre-indictment failure to

appoint counsel for Respondent Segura and others, the

Court will benefit from a detailed investigative history to

better appreciate the lack of necessity for the twenty

months that passed between the murder and the indict- -

ment.

1. On October 20, 1978, Respondent Segura arrived

at Lompoc Federal Correctional Institution to serve a

sentence for bank robbery. (R.T. 2137) (Joint Appendix,

page 31)

2. OnNovember 11, 1978, inmate Thomas Trejo was

murdered at the Federal Correctional Institution at Lom-

poc, California.

3. Between November 11, 1978 and December 4,

1978, the authorities interviewed numerous inmates in an

attempt to find out who perpetrated the murder of Thom-

as Trejo. During this time, one inmate, who did not

testify at either of the two trials of this case, implicated

5

Respondent Segura as a perpetrator of the crime. (Joint

Appendix, pp. 50-52)

4. On December 4, 1978, Respondent Segura was

placed in the Isolation Unit at Lompoc Federal Correc-

tional Institution for the commission of the murder of

Thomas Trejo. At that time, a pair of prison workshoes

being worn by Segura was taken from him for analysis

and comparison to a shoeprint found on a locker in the cell

where inmate Trejo was murdered. (R.T. 397-399) In

addition, his fingerprints were at that time, and at all

times prior and subsequent to that, available for analysis.

(Joint Appendix, pp. 29-31) He remained in isolation until

the Indictment in this case on June 17, 1980. (Joint

Appendix, page 31)

5. On December 13, 1978, the Prison Disciplinary

Hearing involving Respondent Segura’s alleged involve-

ment in the murder of Thomas Trejo was held and con-

cluded. Segura requested an attorney to represent him at

this hearing and to assist him in proving his innocence.

That request was denied. Respondent Segura was then

and on that date found guilty of the murder of Thomas

Trejo by the Prison Disciplinary Board. (Joint Appendix,

p. 38)

6. On March 22, 1979, the laboratory of the Federal

Bureau of Investigation in Washington, D.C. conducted a

fingerprint analysis attempting to match Respondent

Segura’s fingerprints to articles found in the murder cell

where Thomas Trejo was murdered. (R.T. 472)

7. On April 10, 1979, the analysis of the footprint

taken at the scene of the murder on November 11, 1978

and from Segura’s shoe taken December 4, 1978 was

conducted at the FBI laboratory in Washington. (R.T.

434)

6

8. On October 16, 1979, additional fingerprint analy-

ses were conducted at the FBI laboratory in Washington.

(R.T. 472)

9. On November 1, 1979, Respondent Segura was

brought to the Federal Grand Jury in Los Angeles for the

purpose of giving additional fingerprint exemplars to be

used by the FBI laboratory in Washington to conduct

additional fingerprint analysis. (R.T. Vol. B, 19-20)

10. In January, 1980, additional fingerprint analysis

was conducted with the submitted fingerprints taken

from Mr. Segura at the Grand Jury in November, 1979.

(R.T. 472)

11. On June 17, 1980, the Indictment against Respon-

dent Segura and the other co-defendants was returned by

the Federal Grand Jury for the Central District of Cali-

fornia (Joint Appendix, p. 4)

12. On September 9, 1980, the Government’s chief

witness against Respondent Segura, Steven Kinard, who

himself was a co-defendant in the Indictment for con-

spiracy to commit murder, volunteered his services to the

Government as a witness against his co-defendants in

exchange for a plea to a reduced charge. (R.T. 740-743)

13. In January, 1981, after the first trial had resulted

in a mistrial, Gene Newby, another critical witness

against appellant Segura, was recruited as a witness for

the United States in the retrial of appellant Segura and

his co-defendants. (R.T. 1075-1079)

14. In April, 1979, an inmate by the name of Robert

Carillo died of natural causes. Not knowing of Carillo’s

. death until just prior to the first trial, Carillo was listed as

an alibi witness by respondent Segura in the Notice of

Alibi given prior to the first trial. (Joint Appendix, pp.

42-43, 78) Segura later testified that Carillo was one of the

7

inmates with whom he ate morning breakfast on the day

of the Trejo killing at the very time that Steven Kinard

testified that Segura and his co-conspirators were

arranging for the murder of Trejo while walking the

athletic track of the prison. (R.T. 2145-2146)

15. In June, 1979, Michael “Flappers” Thompson,

another inmate at the Lompoc Federal Correctional In-

stitution, died of natural causes. (R.T. 2228) The evidence

at trial, through the testimony of numerous witnesses,

showed that Thompson was one of the potential perpetra-

tors of the murder of Thomas Trejo, along with Steven

Kinard.

16. Gary Lowe, another inmate at the Lompoc Feder-

al Correctional Institution, was also listed by Respondent

Segura as one of the alibi witnesses who was present with

Segura in his unit during the time of the Trejo killing.

Inmate Gary Lowe died in January, 1980 of natural

causes. (Joint Appendix, pp. 42-4,3, 78)

C. Procedural History Of The Case

Prior to the commencement of the first trial, Respon-

dent Segura and co-respondents filed a motion to dismiss

the indictment on multiple grounds. The motion was pre-

mised upon the prejudicial effects of the lengthy 20-

month delay from the time the murder was committed

until the defendants were indicted and appointed counsel.

The motion was founded upon the right of a defendant to

due process of law under the Fifth Amendment and to be

free from a prejudicial pre-indictment delay. It was also

founded upon the deprivation of rights under the Sixth

Amendment to counsel and to a speedy trial.

With respect to the Sixth Amendment violation and the

other resulting prejudices highlighted in the Fifth

Amendment deprivations, Respondent Segura pointed

8

out that the tardy appointment of counsel some 20 months

after the offense in question rendered it virtually impossi-

ble to properly investigate the underlying facts of the

case and mount a proper defense. (Joint Appendix, pp.

39-43, 78) Among the allegations listed in the motion was

the inability to locate witnesses, some of whom were no

longer alive and many of whom were disbursed through-

out the prison system or had already been released from

prison. The difficulties as presented were made more

severe by the fact that most prison inmates know each

other only by nicknames and once dispersed are impossi-

ble to locate. In addition, the lengthy time between the

offense and the appointment of counsel resulted in a find-

ing by counsel that even for those inmates who could be

located as witnesses, their memories were severely dim-

med as to the relevant facts of the case.

The motion also highlighted that the defendants were

hampered in their own ability to investigate the case and

hence assist the later appointed counsel because the de-

fendants themselves were in an isolated status for some

20 months and had no access to the general prison popula-

tion from which population would come the potential wit-

nesses in their case. Thus, respondent and his co-

defendants lacked the ability to conduct their own person-

al investigation, find potential witnesses as to their

whereabouts at the time of the offense or to attempt to

locate other persons who might have been responsible for

the death of Thomas Trejo.

The District Court denied the motion and Respondent

Segura and his co-defendants proceeded to trial. The first

trial (which lasted approximately 4 weeks) resulted in a

mistrial when the jury was unable to reach a verdict. Ata

re-trial of the case, a second jury returned verdicts of

guilty against Respondent Segura and his co-defendants

9

for the murder of Thomas Trejo and for conspiracy to

commit that murder.

In appealing the conviction, Respondent Segura raised

numerous issues before the United States Court of

Appeal for the Ninth Circuit. Among those were the

issues raised in the motion to dismiss the indictment

referred to above. In addition, appellant Segura raised

issues relating to the failure of the government to disclose

an alibi rebuttal witness which it called for testimony in

the second trial. Other objections relating to evidentiary

rulings at trial were raised in the appeal before the Ninth

Circuit.

After the submission of briefs and oral argument on all

of these issues, the Court of Appeal, on its own motion,

ordered an En Banc hearing on the limited issue of the

applicability of the Sixth Amendment right to counsel to

prison inmates who are held in isolation for lengthy

periods of time prior to being indicted for a criminal

offense. At the time this En Banc, hearing was ordered

the case of United States v. Mills and Pierce was con-

solidated for consideration of this issue only.‘

The Ninth Circuit Court of Appeal, in an opinion re-

ported at 704 F.2d 1116, reversed the convictions of Re-

spondent Segura and his co-defendants as well as those of

Mills and Pierce on the grounds that there had been a

prejudicial denial of the Sixth Amendment right to coun-

sel for all of these prison inmates who had been held in

isolation without counsel or the ability to investigate their

case prior to indictment. The Court of Appeal analyzed

the history of the applicability of the right to counsel as it

had been set forth by the United States Supreme Court

‘Issues pertaining to pre-indictment delay and other appellate

issues were never decided by the Ninth Circuit.

10

and concluded that in prison crimes the right to counsel

should attach to an inmate held in isolation for a period in

excess of 90 days, because such an inmate was invariably

being held in that category for purposes of future indict-

ment for a criminal offense. In analyzing the remedies

available for such a deprivation of a constitutional right as

this, the Court concluded that the only potential remedy

was that of dismissal of the indictment, since the preju-

dice resulting from the failure to provide counsel to such

an inmate was pervasive.

Subsequently, the United States petitioned this Court

for a writ of certiorari, which on October 17, 1983, was

granted.

SUMMARY OF ARGUMENT

The Court of Appeal held that an indigent prisoner held

in administrative detention past ninety (90) days must be

appointed counsel on request, or a subsequent indictment

against him for a prison crime was subject to dismissal.

As more fully set forth below, the decision of the Court

of Appeal was a logical extension of the teaching of the

Supreme Court in its application of the rules pertaining to

the Sixth Amendment right to counsel. Moreover, the

remedy of dismissal of the instant indictment was the only

practical remedy in view of the prejudices suffered by

Respondent Segura and his co-Respondents.

11

ARGUMENT

A. The Ninth Circuit Court Of Appeal's Decision Requiring

That Counsel Be Appointed For An Indigent Prison In-

mate Who Has Been Held Beyond The Maximum Admin-

istrative Detention Period Pending Investigation Or Trial

For A Criminal Act Is A Natural Extension Of This

Court’s Teachings.

This case presents this Court with an opportunity to

examine the application of the right to counsel under the

Sixth Amendment of the Constitution in the context of

the prison setting. The Court of Appeal, faced with a

question of first impression unique to prison crimes,

fashioned a rule of accommodation which will protect the

government’s legitimate prison security interests and yet

preserve the indigent inmate’s Constitutional right to

counsel.

The Court of Appeal concluded that inmates, held in

administrative detention beyond the ninety (90) day max-

imum disciplinary period, must ask for an attorney, es-

tablish indigency, and then be allowed to make a prima

facie showing that their continued presence in isolation is

due, at least in part, to a pending investigation for a

felony. If the inmate can carry the burden and establish

the aforementioned requirements, then prison officials

must refute the inmate’s showing by demonstrating that

continued isolation is necessary for security reasons, ap-

point counsel, or release the inmate back into the general

prison population. 704 F. ad at 1124. The rule fashioned by

the Court of Appeal assures that any continued detention

is for investigative purposes only and thus fixes a point in

time when the initiation of adversary judicial proceedings

attaches in the prison context.

12

1. The Institution Of Adversary Judicial Proceedings In The

Prison Setting Occurs When An Inmate Is Isolated Solely

For Investigation For A Felony Or Trial For A Criminal

Act.

The Sixth Amendment provides that “[iJn all criminal

prosecutions, the accused shall enjoy the right.. to

have the assistance of counsel for his defense.” Historical-

ly, the Sixth Amendment counsel guarantee has been

given an expansive reading.

“The Court consistently has applied a historical in-

terpretation of the guarantee, and has expanded the

constitutional right to counsel only when new con-

texts appear presenting the same dangers that gave

birth initially to the right itself.” United States v.

Ash, 413 U.S. 300, 311 (1973) (emphasis added).

In its opening brief for Petitioner, the Solicitor General

claims that the opinion of the Court of Appeal is a “radical

departure from the decisions of this Court.” In asserting

this view, the Solicitor General has ignored the historical

development and expansive reading given the right to

counsel guarantee, and has erroneously asserted a posi-

tion that would stifle a defendant’s right to counsel

“whenever necessary to assure a meaningful defense.”

United States v. Wade, 388 U.S. 218, 225 (1966). In order

to apply the Sixth Amendment as it was intended by the

original drafters, one must examine the circumstances

raising the issue in light of the Sixth Amendment’s histor-

ical development.

“The right to counsel in Anglo-American law has a

right historical heritage, and this Court has regular-

ly drawn on that — fine construing the counsel

guarantee of the Sixth Amendment.” United States

v. Ash, 413 U.S. at 306.

Under the common law of England, which was brought

to the American colonies, the typical criminal prosecution

13

was conducted by a private prosecutor. The American

judicial system, in apparent response to the lack of

lawyers, adopted the institution of the public prosecutor.

As a result “the accused in the colonies faced a govern-

ment official whose specific function it was to prosecute,

and who was incomparably more familiar than the ac-

cused with the problems of procedure, the idiosyncracies

of juries, and . . . the personnel of the court.” United

States v. Ash, 413 U.S. at 308 (citation omitted). In

recognition of this prosecutorial force, which created an

imbalance in the adversary system, the American judicial

system developed and recognized the accused’s right to

counsel.

Throughout the years, this Court has maintained a

flexible approach when applying the Sixth Amendment’s

right to counsel guarantee, in order to compensate for the

imbalance in the adversary system resulting from the

creation of the office of the public prosecutor. Each pre-

trial confrontation has been individually examined in light

of the purpose for which the Amendment was passed. The

Court in United States v. Ash, 413 U.S. 300, 310-11

(1973), noted the progressive nature of the right to coun-

sel and the need to avoid the application of a static in-

terpretation of this essential right. The court wrote:

“This extension of the right to counsel to events

before trial has resulted from changing patterns of

criminal procedure and investigation that have

tended to generate pretrial events that might appro-

1238 be — to be — trial “yor

t these newly emerging igni t events, the

—— was egg ny ag |g as at — by the qu

system, or expert adversary, or by

both. In Wade, the Court explained the process of

14

expanding the counsel guarantee to these confronta-

tions:

When the Bill of Rights was — there

were no organized police forces as we know them

today. The accused confronted the prosecutor and

the witnesses against him, and the evidence was

marshalled, ly at the trial itself. In contrast,

today’s law enforcement machinery involves cri-

tical confrontations of the accused by the prosecu-

tion at pretrial proceedings where the results

might well settle the — fate and reduce the

trial itself to a mere formality. In recognition of

these realities of modern eriminal prosecution, our

cases have construed the Sixth Amendment

guarantee to apply to ‘critical’ stages of the

proceedings 388 U. S., at 224, 87 S. Ct., at 1931

(footnote omitted).

This case presents a variation on the normal course of

criminal proceedings, because the confrontation between

the prosecutorial forces and the defendants, all of whom

were inmates held in isolation, occurred before defend-

ants had been indicted. The Solicitor General cites Kirby

v. Illinois, 406 U.S. 682 (1972), in support of its argument

that no right to counsel attaches until the initiation of

adversary judicial proceedings, a point which the Solici-

tor General identifies as the time of indictment. How-

ever, neither Kirby, nor any of the cases cited therein,

dealt with the confinement of a prisoner and when his

right to counsel should attach. The initiation of the

adversary judicial proceeding as envisioned in Kirby was

determined to be the point in time when the right to

counsel should attach to free citizens in order to adequate-

ly protect their constitutional rights. The opinion in Kirby

was not designed with the prison environment in mind

and thus cannot be mechanically applied to such a situa-

tion without some modification.

15

Different evaluations must be conducted when our

attention is drawn to the prison setting and the Con-

stitutional rights of inmates. The Court in Wolff v.

McDonnell, 418 U.S. 539, 566 (1974), recognized the very

different circumstances confronting prisoners and con-

cluded:

.. [Ohe cannot automatically apply procedural

rules designed for free citizens in an open society, or

for parolees or probationers under only limited re-

straints, to the very different situation presented by

a disciplinary proceeding in a state prison.”

In keeping with the continuing evolution of the Sixth

Amendment, the Court of Appeals, in the instant case,

faced with a unique pre-trial confrontation involving pris-

oner’s rights to counsel, fashioned a rule based upon the

prison regulations which would once again restore the

balance in the adversary system.

Although, in the vast majority of cases, arrest or indict-

ment do in fact mark the initiation of adversary proceed-

ings, and are not “a mere formalism,” Kirby v. Illinois,

406 U.S. at 689, that triggers the application of the Sixth

Amendment rights, the Court of Appeal noted the unique

position vis-a-vis the prosecution, which faces an inmate

who is suspected of a prison crime.

“Formal charges need not be brought until the

e suspect can

isolated without being arrested. To insist that an

inmate is not aceused' until formal are in-

itiated is to ignore reality.” 704 F. 2d 1

It is important to note that the Kirby plurality, which

the Solicitor General relies upon in asserting his position

that isolation pending trial can never be an accusation,

identified the initiation of judicial proceedings as the

point when the government has committed itself to prose-

16

cute, and the adverse positions of the parties have solidi-

fied. “It is then that a defendant finds himself faced with

the prosecutorial forces of organized society, and im-

mersed in the intricacies of substantive and procedural

criminal law.” Kirby, supra, 406 U.S. at 689. Thus, if the

adverse positions of the parties have solidified at some

point earlier than arrest or indictment and the defendant

has been faced with the prosecutorial forces of the

government, then Kirby certainly suggests that the right

to counsel attaches at that time, despite the absence of

any formal procedures. The Kirby plurality opinion can

thus be read as holding that the right to counsel attaches

at a point in time no later than the initiation of adversary

judicial proceedings.“

Giving the Kirby decision this flexible reading rather

than the rigid, unbending reading expressed by the Soli-

citor General will promote the purpose for which the

Sixth Amendment was passed and provide a basis for

future growth and adaptability. In order to determine

whether the right to counsel attaches to a particular

event, there must be an “examination of the event(s] in

order to determine whether the accused required aid in

coping with legal problems or assistance in meeting his

adversary.” United States v. Ash, 413 U.S. 300, 313

(1973). Given the complexities of each new confrontation

between the government and the accused, and the con-

stant need to maintain a balance in the adversarial sys-

tem, it wouuld be a misguided endeavor to engrave in

stone any rules for the application of the right to counsel.

Justice Brennan, Marshall and Douglas, who joined in dissenting,

would have attached the right to counsel at an even earlier stage.

17

In United States v. Wade, 388 U.S. 218, 224 (1967), this

court remarked:

“(O)ur cases a construed the Sixth Amendment

tee to apply to ‘critical’ stages of the proceed-

ings... . The p in wording of t arantee thus

encompasses counsel's assistance whenever neces-

sary to assure a meaningful ‘defense.’ “. . the ac-

cused is teed that he need not stand alone

against the — at any stage of the prosecution,

formal or informal, in court or out, where counsel’s

absence 1 derogate from the aceused's right to a

fair trial.” — 2 omitted).

The initial stages of investigaton in the present case

were such a ‘critical stage’ of the proceedings, and coun-

sel’s absence did in fact derogate from the accused’s right

to a fair trial. Respondent Segura and his three co-

defendants were placed in solitary confinement for almost

two years without the assistance of counsel, despite re-

peated requests, while the government and F. B. I. slowly

and methodically conducted their investigation and pre-

pared their case for trial. It was during these early

months that witnesses’ memories were most distinct. It

was in this period that the Government interviewed hun-

dreds of inmates and found those it would use to later

(much later) seek an indictment. The defendants were

completely deprived, by virture of their isolation from the

general prison population and the absence of legal assist-

ance, to conduct a similar investigation. During the first

months of solitary confinement, prison officials conducted

a disciplinary hearing at which time respondent was

found guilty of the murder of Thomas Trejo. Asa result of

this prison hearing, respondent was sentenced to solitary

confinement pending the Government’s investigation.

Federal prison regulations provide, as the Court of

Appeal noted, that the maximum stay in isolation for

18

disciplinary purpose is 90 days. C. F. R. § 541.11 (1982);

704 F.2d 1124. “Federal prison regulations [also] specifiy

that administrative detention can only continue in-

definitely where the detention is in contemplation of a

criminal prosecution.” Id. And finally, the prison regula-

tions require the Warden to “prepare a memorandum

detailing the reasons for placing an inmate in administra-

tive detention, with a copy given to the inmate.” 28

C. F. R. § 541.20(b). Yet despite these detailed proce-

dures, prison authorities continued the solitary confine-

ment of respondent and his co-defendants for seventeen

(17) months beyond the maximum three-month dis-

ciplinary period, and failed to prepare or provide respon-

dent with a memorandum stating the reasons for his

continued confinement. This clearly suggests that the

seventeen (17) months of confinement beyond the ninety

(90) day maximum disciplinary period was in contempla-

tion of criminal prosecution, which was presumed by the

Court of Appeal and never refuted. The attempt now

made by the Solicitor General to utilize these prison

regulations as a justifi cation for the lengthy isolation of

these defendants is misleading in that none of the

aforementioned procedures for lengthening the isolation

was employed, and no proper ground existed for

lengthening the isolation. The purpose and only purpose

for keeping these inmates in isolation was to keep them

from the general prison population where these inmates

could potentially suborn perjury concerning the crime in

question. See Petitioner’s Brief, pp. 26-27. Thus, under

the guise of preventing subornation of perjury, the

Government in effect has justified depriving an inmate of

any right to investigate the case on his own.

Since respondent had been found guilty of the murder

by prison authorities and was suffering a significant loss

of his liberties and the ability to investigate his own case

19

due to his lengthy confinement pending criminal in-

vestigation, it is clear that the adverse positions of the

parties had solidified, the initiation of the adversary

proceedings had begun and the right to counsel had

attached all prior to the formal indictment.

2. The Respondent Was Denied The Effective Assistance Of

Counsel At A “Critical” Pretrial Proceeding.

This court has consistently held that the right to coun-

sel attaches at any “critical” pretrial proceeding. United

States v. Wade, supra, 388 U.S. at 224. A “critical” stage

of the proceeding occurs whenever counsel’s presence is

necessary “to protect the fairness of the trial itself.”

Schneckloth v. Bustamonte, 412 U.S. 218, 239 (1973); CV.,

Coleman v. Alabama, 399 U.S. 1, 17-18 (1970), (Stewart,

J., dissenting). As noted by the Court of Appeal, respon-

dents clearly lacked a meaningful defense at trial as a

result of being denied the aid of counsel for nearly two

years. While the government and F. B. I. gathered testi-

mony and preserved evidence, Respondent was forced to

sit in solitary confinement without the aid of counsel.*

Twenty months later the Government lethargically com-

pleted its thorough investigation and indicted Respon-

dent. Only then was Respondent appointed counsel.

However, at this point, the “critical” initial stages of

investigation were forever lost to Respondents. Memor-

It must be noted that a non-indigent inmate placed in solitary

confinement is permitted to hire counsel at the initial stages of the

government’s investigation in order to preserve his right to a fair

trial. Respondent’s lack of effective assistance of counsel and his

resultant unfair trial were due solely to his indigency.

Further, an indigent inmate held in disciplinary segregation has no

opportunity whatsoever to gather or preserve evidence once the

disciplinary are concluded and his need for counsel truly

becomes apparent.

4

20

ies had faded, witnesses were lost or had died and physic-

al evidence essential to respondent’s case had deterio-

rated. (See Appendix A, pages 79-82)

Although the Court in United States v. Ash, 413 U.S.

300 (1973), concluded that the right to counsel does not

necessarily apply to the prosecutor’s trial preparation

interviews with witnesses or to photographic displays, it

based this holding on the existence of the following parity:

“The traditional counterbalance in the American

adve system for these interviews arises from

the equal ability of defense counsel to seek and in-

terview witnesses himself.

“That adversary mechanism remains as effective

for a photographic display as for other parts of pre-

trial interviews. No greater limitations are placed on

defense counsel in constructing displays, seeking

witnesses, and conducting photographic identifica-

tions than those applicable to the prosecution.” 413

U.S. at 318 (footnote omitted).

This balance in the adversarial system caused the con-

frontation in Ash to not be “critical.” However, if this

traditional counterbalance in the American adversary

system is upset by the inability of defense counsel to seek

and interview witnesses himself, then the pretrial con-

frontations become “critical.” Respondents in the present

case lost this equality of access to witnesses by being held

in isolation without counsel for twenty (20) months while

the government took full advantage of the prejudicial

disparity and reduced respondent’s trial “to a mere for-

mality.” United States v. Wade, 388 U.S. at 224.’

The continued reference by the Government to the fact that these

defendants and a fifth inmate charged called fourteen (14) alibi wit-

nesses is misleading. These fourteen witnesses were not all called by

21

There can be little doubt that the presence of counsel

could have averted the prejudicial effect of the lengthy

detention and assured a meaningful confrontation at trial.

Investigation and preparation are the keys to effective

representation... . It is impossible to overemphasize the

importance of appropriate investigation to the effective

and fair administration of criminal justice.” ABA Stand-

ards at 225. See ABA Standards § 4.1 (2d ed. § 4-4.1)

(Duty to Investigate) By denying respondents the ap-

pointment of counsel at the critical initial stages of in-

vestigation, the government has violated the very es-

sence of the Sixth Amendment guarantee.

Proper investigation by both sides is crucial in

maintaining the balance of the adversary system.

“First, the proper functioning of our adversary s

tem — that both sides prepare and o —

their case in advance of trial. There can be no justice

where one party to the battle [is prevented from]

arm ing] itself with bo poten nt facts and law.

Second, in a very practical sense, cases are won on

the facts. Proper investigation is critical not only in

turning up leads and witnesses favorable to the de-

fense, but in nets bagasse to take full advantage

of trial tactics such as cross-examination and

2 of adverse witnesses. And of course,

equate investigation is necessary to ensure

that all a alable defenses are raised and the govern-

ment is, put to its proof.” United States v. Decoster,

624 F.2d 196, 277-78 (D.C. Cir. 1976) (Bazelon, J.,

dissenting) (footnotes omitted).

one defendant, but divided among them. Moreover, in the pretrial

and trial proceedings, counsel proved that there were other alibi

witnesses who could not be called because they were known only by

nicknames, had dispersed to other prisons or been released from

custody, or had died. Also lost through natural death was an alter-

nate suspect, Michael Thompson.

22

The Court of Appeal held that respondent’s lack of

counsei during the “critical” initial stages of investigation

unconstitutionally obstructed the ability of respondent to

receive a fair trial. Viewed in the light of the historical

development of the Sixth Amendment, and this Court’s

previous decisions, the Court of Appeal’s decision is a

logical extension of the counsel guarantee and should be

upheld.

3. The Decision Below Is A Logical Extension Of The Right

To Counsel Guarantee And Protects Indigent Inmates In

An Area Previously Subject To Overreaching By The

Prosecution.

The Court of Appeal held that if an inmate is confined in

isolation for more than 90 days, the maximum disciplinary

period provided for in the prison regulations in the ab-

sence of properly sought extensions, he should be permit-

ted to demonstrate, and in fact it is presumed, that his

continued presence in isolation is due to a pending in-

vestigation or trial for a criminal act. United States v.

Gouveia, 704 F.2d 1116, 1124 (9th Cir. 1983). In order to

avoid the potential for abuse which may arise by extend-

ing the right to counsel to such indigent inmate detainees,

and in recognition of the prison’s legitimate need to pro-

tect the security of the institution and its inmates, the

Court of Appeal delineated specific procedures which

must be met before an indigent inmate is constitutionally

entitled to appointed counsel. The Court held:

_ “The inmate must ask for an attorney, establish

and make a prima facie sho owing that one

— reasons — map rye detention is —5 *

22 of a felon t int 5 0

tion of « felony. At thie point

, appoint

—. 9 e general

prison population.” Id.

23

By couching its holding in the aforementioned terms,

the Court of Appeal has permitted the continued deten-

tion of an inmate for legitimate prison disciplinary

reasons, thus safe-guarding the integrity of the internal

prison system, and yet recognized the indigent inmate’s

constitutional right to counsel when he has for all practic-

al purposes been charged with a federal crime.

Prior to the decision of the Court of Appeal, the

Government, faced with circumstances such as those in

the instant case, would actually assume the role of an

adversary vis-a-vis the prisoner, without having to comp-

ly with the constitutional procedures which follow when

that adversarial role is formalized by an indictment or

information. Thus, in effect, the Government can

functionally accuse in the prison context and then delay

the attachment of the prisoner’s constitutional rights in-

definitely while it builds its case.* As the Court below

noted, “when detention is ordered as a disciplinary meas-

ure or to prevent disorder it is indeed a matter of internal

prison administration. But when used to isolate an inmate

pending trial both its purpose and effect is accusatory.”

704 F. ad at 1123. In light of this observation, the Court of

Appeal fashioned a rule to give effect to the right to

counsel in the prison context, in order to avoid clear

overreaching when committed by the Government, as in

the instant case.

The reasoning of the Court of Appeal is consistent with

the historical development of the Sixth Amendment and

»The Court should be mindful that in murder prosecutions, the

accused is without the added protection of a statute of limitations.

See 18 U.S.C. § 3281. Thus, if a detainee is left without protection

such as that called for by the Court of Appeal, he could be without

counsel for years prior to indictment.

24

with the decisions of other Courts who have examined the

application of the Sixth Amendment in the prison con-

text.

In United States v. Duke, 527 F. 2d 386 (5th Cir. 1976),

the defendent inmate was held in administrative segrega-

tion for 35 days. The Court examined this detention

period under traditional Sixth Amendment right to

speedy trial analysis, and concluded that the Sixth

Amendment was not triggered because administrative

segregation was “[uJsed as a method of disciplining or

investigating inmates who break prison regulations, of

protecting 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. However, the

Court noted that this conclusion was based on the fact

that “. . . administrative segregation accompanying the

breach of a prison regulation [was] 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.

Thus, when the administrative segregation goes

beyond serving a purely internal disciplinary function and

is used for reasons related to or dependent upon prosecu-

tion by the Federal Government, the segregation is tan-

tamount to an accusation. See also United States v. McLe-

more, 447 F. Supp. 1229, 1235-36 (E.D. Mich. 1978)

(Sixth Amendment right to speedy trial triggered by

placement in administrative detention since purpose of

detention was to answer for criminal charges and not for

purely institutional reasons). Consistent with these deci-

sions, the Court below fashioned a rule which provided an

indigent inmate with the opportunity to demonstrate that

his continued detention is related to or dependent on a

pending criminal prosecution.

25

As noted previously, an interpretation of the Sixth

Amendment cannot be engraved in stone. The right to

counsel guarantee must be expanded to those situations

which “appear presenting the same dangers that gave

birth initially to the right itself.” United States v. Ash,

413 U.S. at 311. The Court below noted the potential for

overreaching by the prosecution in a lengthy detention,

thus creating an imbalance in the adversary system. To

remedy this imbalance, the Court of Appeal extended the

right to counsel under limited circumstances, and

brought the adversary system into a constitutional bal-

ance.

B. Dismissal Of The Indictment Is The Appropriate Remedy

To Neutralize The Prejudice Suffered By Respondent

The Solicitor General argues that, even assuming there

has been a Sixth Amendment violation, dismissal of the

indictment is an inappropriate remedy in the absence of

any specific showing of prejudice.

The Court of Appeal, in fashionmg a remedy com-

mensurate with the deprivation charged, construed the

prejudice suffered by respondent in the instant case in

light of the recent decision in United States v. Morrison,

449 U.S. 361 (1981). In Morrison this Court examined the

possibility of dismissal in the event of a violation of the

Sixth Amendment’s right to counsel. This Court adopted

the following approach in order to aid in the selection of a

proper remedy: “[oJur approach has thus been to identify

and then neutralize the taint by tailoring relief appropri-

ate in the circumstances to assure the defendent the

effective assistance of counsel and a fair trial.” Id. at 365.

The Court went on to note that if there were demonstr-

able prejudice or even the substantial threat thereof,

then dismissal of the indictment would be appropriate.

Id.

26

The Court of Appeal concluded that the instant case

presented a compelling set of circumstances which justi-

fied the remedy of dismissal. The denial of counsel to

respondent during the initial critical stage of investiga-

tion, while the events surrounding the murder were fresh

in the minds of all those involved, and for the twenty

months thereafter, so permanently prejudiced respon-

dent’s defense that a fair trial could not be had. “Here,

however, Government conduct has rendered counsel’s

assistance to [respondent’s] . . . ineffective and the re-

sulting harm is not capable of after the fact remedy. . .

{hjere ... the only certain remedy is to dismiss the

indictments against them.” 704 F.2d 1126.

Keeping in mind the teachings of the Supreme Court,

that courts must be “responsive to proved claims that

governmental conduct has rendered counsel’s assistance

to the defendant ineffective,” United States v. Morrison,

supra, at 364, and in order to neutralize the substantial,

permanent prejudice suffered by respondent, the Court

below was left with no alternative but to dismiss the

indictment.

Contrary to the claims by the Solicitor General that the

Court dismissed the indictment based on a presumption

of prejudice, the Court of Appeal stated: “Even without

the presumption there is evidence that ‘substantial preju-

dice’ may have occurred in the instant case.” 704 F. 2d

1126. The respondents clearly demonstrated for the rec-

ord the substantial prejudice suffered by them as a result

of being denied counsel. Critical alibi witnesses and other

crime suspects were lost during the inordinant delay

through death or inability to be located. This fact in itself

is sufficient to deny respondent a fair trial. A strong

showing was made concerning the difficulties faced by

counsel first appointed twenty (20) months after the

27

crime in locating witnesses, most of whom were known

only by nicknames, and who had now been either scat-

tered about the prison system or released from custody

altogether. Moreover, as noted by the Court below, it

was a significant fact that the Government was unable to

rebut respondent’s showing of potential prejudice. (See

Joint App. 79-82)

This Court in Morrison noted that under the appropri-

ate circumstances a substantial threat of demonstrable

prejudice would warrant dismissal. In addition to making

a showing of substantial prejudice, respondent demon-

strated a substantial threat of demonstrable prejudice.

Had counsel been appointed at the appropriate time, he

could have preserved the physical evidence and testi-

mony of witnesses necessary to assure a fair trial. How-

ever, under the circumstances of the instant case, the

Court noted the potential of substantial prejudice which

faces administrative detainees because “ordinarily it will

be impossible adequately either to prove or refute its

existence.” 704 F.2d 1126. This inadequacy stems from

the inmate being compelled to prove that his defense has

been prejudiced by the irretrievable loss of exculpatory

evidence, the very evidence which cannot now be deter-

mined due and owing to the lack of attorney assistance to

preserve it. Thus, the Court below was correct in dismiss-

ing the indictment.

As a result of the foregoing demonstration, it is clear

that the scales of justice weigh more heavily in favor of

dismissal of the indictment in the instant case.

CONCLUSION

Respondents clearly were prejudiced by the depriva-

tion of the effective assistance of counsel. As a matter of

fashioning a remedy in this case, and also for policy

28

reasons attendant in other cases of serious prison crime,

the effort by the Court of Appeal to construct a perma-

nent rule which preserves both the integrity of prison

security and the safeguards of the right to counsel under

the Sixth Amendment should be sustained by this Court.

For the foregoing reason, the decision of the Court of

Appeal should be affirmed.

Respectfully submitted,

JOEL LEVINE

Court-appointed Attorney for Respondent

Philip Segura