Amicus Brief — United States v. Gouveia

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No. 83-128 Vifice - Supreme Court, U.S

JAN 12 1984

IN THE

Supreme Court of the An ies

OCTOBER TERM, 1983

>_>

UNITED STATES OF AMERICA,

Petitioner,

—Vvs.—

WILLIAM GOUVEIA, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, AMICUS CURIAE

RICHARD J. WILSON*

National Legal Aid And

Defender Association

1625 K Street, N.W.

Eighth Floor

Washington, DC 20006

(202) 452-0620

JAMES G. WOODWARD

Assistant Defender

Office of the State

Appellate Defender

Fourth Judicial District

300 East Monroe, Suite 102

Springfield, IL 62701

(217) 782-3654

*Counsel of Record

TABLE OF AUTHORITIES

Avery v. Alabama, up U.S. 444

Civows « 8 * . let Ce

Coleman v. Alabama, 399 U.S. 1

(1970) ; ‘ gt tng

Gideon v. Wainwright, 372 U.S.

335 (1963) ee ek ve

Gilbert v. calitornia, 388 U.S.

263 (1967) Te ah ta acai

Hewitt v. eis:

2 71983). J nagreagl

Hoffa v. United States, ong U.S.

293 (1966) . es : Gio tea

Kent v. United States, 383 U.S.

1 Be __. eee- ae eeee

Kiney v. Illinois, 406 U.S. 682

Mathis v. United States, ne U.S.

I (1968) .

Moore v. Illinois, 434 U.S. 220

PE er BONE eh Bi go gt ei

Powell v. Alabama, 287 U.S. =

2) . . . .

Price v. Johnson, 334 U.S. 266

(1948) . « . oo . -_ . . + .

United States v. Ash, 413 U.S.

Mel op: ee eee

United States v. Clardy, 540 F.2d

“439 (Sth Cir.), cert. denied,

429 U.S. 963 (1976) Ghat eth

United States v. Gouveia, 704

; t ¥. 83).

United States v. Morrison, 449

U.S. 361 (1981). psisty

United States v. Wade, 388 U.S.

oe CRP oe ee le hte a sek ee

Wolff v. McDonnell, 418 U.S. we

(1974)

11,23,

No. 83-128

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

UNITED STATES OF AMERICA, Petitioner

vs.

WILLIAM GOUVEIA, ET AL., Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INTEREST OF AMICUS

The National Legal Aid and Defender

Association (NLADA) is a not-for-profit

organization whose members include the

great majority of public defender

offices, coordinated assigned counsel

systems and legal services agencies in

the nation. The organization also

includes two thousand individual members,

most of whom are private practitioners.

NLADA's primary purpose is to

assist in providing effective legal

services to persons unable to retain

counsel. In carrying out this purpose,

NLADA has a strong interest in protect-

ing its members' clients’ constitutional

right to effective assistance of counsel

in criminal prosecutions. Consistent

with this interest, NLADA believes that

indigent prisoners are entitled to the

assistance of appointed counsel when

they are detained and segregated from

the prison population in anticipation of

a prosecution for a crime that occurred

in the institution. This brief is filed

in support of the respondents.

THE LAWFULLY INCARCERATED P

SONER WHO, BEFORE FORMALL

BEING CHARGED, IS ISOLATED IN

ADMINISTRATIVE DETENTION PEND-

ING INVESTIGATION AND TRIAL

FOR A CRIME COMMITTED IN THE

PENAL INSTITUTION IS CONSTITU-

TIONALLY ENTITLED, TO THE AS-

SISTANCE OF APPOINTED COUNSEL

WHEN THE PROLONGED NATURE OF

THAT DETENTION THREATENS THE

BALANCE IN THE ADVERSARIAL

PROCESS BY IMPAIRING THE AC-

CUSED'S ABILITY TO PREPARE A

DEFENSE.

A. Introduction And Summary Of

Argument

The right to representation by

counsel "is of the essence of justice."

Kent v. United States, 383 U.S. 451, 561

(1966). The laudable role of jurispru-

dence is to ascertain the principles

upon which the foregoing rule is based

and to study the manner in which new or

doubtful cases should be governed by it.

This constant process of reexamining

established rules of law in the context

of varying factual situations promotes a

refinement in the law that would be

wholly lacking otherwise.

Thus mindful of the fundamental

mature of the right to counsel, the

instant case provides the first opportu-

nity for this Court to consider that

Sixth Amendment guarantee under circum-

stances unique to prison crime prosecu-

tions. While the analysis must track

the path of this Court's prior decisions

affecting the scope and application of

the Sixth Amendment right to counsel,

guidance on this frontier of constitu-

tional interpretation also must be drawn

from a sensitive scrutiny of the reali-

ties of the prison environment. A

principled examination of both precedent

and policy confirms that the detained

prisoner's right to appointed counsel

prior to formal indictment for a prison

crime must be accommodated if the

historical spirit of the Sixth Amendment

is to be realized in this unique setting.

As a society whose mission is to

punish, discipline and segregate its

members . com the law-abiding community

at large, the prison environment neces-

sarily reflects significantly less

regard for the many liberties’ that

citizens outside prison walls enjoy.

Price v. Johnsori, 334 U.S. 266, 285

(1948). The governed populace of the

prison society are subject to intrusions

on personal freedom and privacy that are

plainly abhorrent to those not burdened

by the disabilities of a criminal

conviction and incarceration. Though

lawfully deprived of liberty, prisoners

retain a residuum of constitutional

rights. "(HJis rights may be diminished

by the needs and exigencies of the

institutional environment, {but] a

prisoner is not wholly stripped of

constitutional protections when he is

imprisoned for crime. There is no iron

curtain drawn between the Constitution

and the prisons of this country." Wolff

v. McDonnell, 418 U.S. 539, 555 (1974). °

Constitutional guarantees in the prison

context inevitably are affected "by the

nature of the regime to which [prisoners]

have been lawfully committed." Id. at

556. And if certain of those guarantees

are to endure at all in that hostile

context, the required accommodation may

have to be in the form of acute augmen-

tation of the right rather than contrac-

tion of it. The goal, however, is

“mutual accommodation between institu-

tional needs and objectives and the

provisions of the Constitution that are

of general application." Id. at 556.

Just as free society is plagued by

crime, the prison community is victim-

ized by that same societal evil. While

the residents of the penal institution

are convicted criminals themselves, they

are no less entitled to protection from

the criminal activity of their colleagues

than are free citizens. Moreover,

prison administrators have a compelling

interest in maintaining good order in a

close physical confinement among resi-

dents who already are prone to violence

or lawlessness of one kind or another.

Hewitt v. Helms, i eee ae

L.Ed.2d 675, 689 (1983).

But in the investigation and

prosecution of prison crime, the govern-

ment wields a degree of power to control

and shape the course of events that is

not duplicated in the sphere. of law

enforcement outside of prison walls. Of

course, once the trial of the prisoner-

defendant has commenced, proceedings

against him inside the courtroom can be

expected to conform to all of the

standard constitutional norms that

govern any criminal prosecution. The

danger, however, is that by exercising

its nearly autonomous control over the

prisoner-defendant's liberty interests

prior to commencement of the formal

proceedings, the government is effec-

tively able to thwart certain of the

accused's constitutional rights as it

martials its already superior litiga-

tional resources to prepare for that

prisoner's prosecution.

The Sixth Amendment right’ to

counsel applies to the prosecution of

prison crime just as to any other

criminal prosecution. United States v.

Clardy, 540 F.2d 439 (9th Cir), cert.

denied, 429 U.S. 963, (1976). Yet the

government is in a position to exploit

all of the advantages of detaining and

isolating an uncounseled prisoner whose

formal prosecution for an institutional

crime is imminent but delayed as a

matter of unchecked prosecutorial

discretion. There can be no doubt that

the risk of tainted fact-finding and

erroneous deprivation increases as the

realistic opportunity for the accused

prisoner to mount a defense is restrict-

ed by prolonged administrative detention.

Consequently, the prisoner who, before

formally being charged, is isolated in

administrative detention pending inves-

tigation and trial for a crime committed

in the institution is constitutionally

entitled to, the assistance of appointed

counsel when the prolonged nature of

that detention threatens the delicate

balance in the adversarial process by

impairing the accused's ability to

- prepare a defense.

B. The Decision Below

To view the court of appeals’

decision in United States v. Gouveia,

704 F.2d 1116 (9th Cir. 1983) as nothing

more than a condemnable, radical depar-

ture from the vested and durable history

of the Sixth Amendment right to counsel

is to suffocate the revered notion of a

living Constitution. For before the

court in United States v. Gouveia were

circumstances calling for application of

a constitutional right in a context

never before encountered. The causes of

justice and constiturt‘onal integrity

would have been poorly served by the

court of appeals' thoughtless application

of constitutional doctrine, spawned in

other arenas, to a set of facts suggest-

ing compelling but heretofore unencoun-

tered concerns.

The opinion in the instant case,

however, has remained true to the rich

heritage of the right to counsel even as

it has recognized the need to expand

that fundamental protection "when new

contexts appear presenting the _ same

dangers that gave birth initially to the

right itself."' United States v. Ash,

413 U.S. 300, 311 (1973). If reviewed

in a spirit cognizant of Sixth Amendment

history but sensitive to adaptation as a

valued constitutional corollary, the

court of appeals' decision can be

endorsed as a prudent yet cautious

application of the right to counsel in

the context of prison crime prosecutions.

Stated in summary fashion, United

States v. Gouveia involves the consoli-

dated cases of six federal prison

inmates convicted of murders committed

in the Federal Correctional Institution

at Lompoc, California. Each of the

inmates was isolated in administrative

detention for periods of time ranging

from eight to nearly twenty months

before official criminal charges were

brought, without the benefit of appoint-

ed counsel. Though adjudicated guilty

of their respective crimes in internal

prison disciplinary proceedings held

shortly after the crimes, the inmates

were at all relevant times the objects

of continuing investigation for criminal

prosecution by the Federal Bureau of

Investigation.

Isolated in administrative detention

as the government built its cases

against them, the inmates uniformly were

denied access to the general prison

population and the physical environs of

the penitentiary. No inmate so isolated

was prohibited from telephoning or

having visits from an attorney of his

choice, but each was shown to have

lacked the financial means to hire

private counsel. The arraignment of

each defendant was the stage at which

appointed counsel first became available

to commence preserving evidence and

preparing the defense to the murder

indictments returned after months of

administrative detention. Ultimately,

the detainees were tried, convicted and

sentenced to terms of life imprisonment

for the crimes at issue in each case.

The issue before the circuit court of

appeals was "whether the isolation of

appellants in administrative detention

pending investigation and trial obligat-

ed prison officials to provide counsel

at any time prior to appellants’ indict-

ments." 704 F.2d at 1119.

Guiding the court of appeals

throughout its analysis of the foregoing

issue of first impression was’ the

premise that the Sixth Amendment right

to counsel historically was designed to

assure fairness in the adversary crimi-

nal process. The court’ therefore

determined that administrative detention

used by the government, not as a disci-

plinary or security measure but as a

tool to isolate an inmate pending trial,

is accusatory both in its purpose and

its effect. In a vein clearly inspired

by Kirby v. Illinois, 406 U.S. 682

(1972), the court held that the reali-

ties of the prison environment compel

the conclusion that a prisoner is func-

tionally accused for Sixth Amendment

purposes sufficient to invoke the right

to appointed counsel at a stage in his

administrative detention prior to formal

indictment. The majority reasoned that

Kirby's literal suggestion of an indict-

ment, information, arraignment, or

preliminary hearing as indicia of the

beginning of adversary criminal proceed-

ings is unworkable and unrealistic in

the controlled confines of the peniten-

tiary because prisoners are "subject to

the discretion of government officials

in a way that individuals outside prison

are not." 704 F.2d at 1120.

To illustrate the sharp contrast

with law enforcement practices in free

society, the opinion of the court of

appeals highlights the following unique

considerations associated with the

investigation and prosecution of prison

crimes:

Upon arrest a defendant must

be arraigned "without unneces-

sary delay." Fed.R.Crim.P.

5(a). At that point’ the

accused is guaranteed the

assistance of counsel. No

such procedural guarantees

operate in prison, where the

suspect may be isolated

throughout the pendency of the

government's investigation.

* * *

In the instant case ... the

government was able to delay

appellants’ arraignment for up

to twenty months, ' thereby

effectively Toe the

right to counsel until its

case was built... Formal

mer need not be brought

until the ent is ready

for trial because the suspect

can be isolated without being

arrested.

704 F.2d at 1122.

Of substantial concern to the court of

appeals was the adverse effect upon the

accused's right to a fair trial flowing

from government exploitation of its

investigatory advantage, while the

isolated and uncounseled inmate is left

virtually helpless to take steps neces-

sary to preserve his own defense.

Worthy of particular note, however,

is the painstaking manner in which the

court of appeals heeded the mandate of

this Court to find a "mutual accommoda-

tion between institutional needs and

objectives and the provisions of the

Constitution that are of general appli-

cation.” Wolff v. McDonnell, 418 U.S.

at 556. A wooden approach to. the

sensitive interests at stake for prison

administrators and inmates undoubtedly

would have produced an unsatisfactory

resolution. But the court of appeals

carefully refrained from exalting the

accused's right to counsel over the

legitimate security and administrative

concerns of the institution, holding

instead that the right to counsel

attaches only at a point in the term of

the prisoner's administrative detention

at which appointed counsel is necessary

to assure that the accused will receive

effective assistance of counsel at the

trial itself. United States v. Gouveia,

704 F.2d at 1124. Thus, the court

unequivocally stated that appointment of

counsel is not mandated at the earliest

stages of the investigation of prison

crime before the adverse positions of

government and inmate have solidified.

Similarly, counsel still is not the

right of an inmate who is subject to

internal disciplinary proceedings for

conduct which may also be a crime. See,

Wolff v. McDonnell, 418 U.S. at 570.

Proceeding, therefore, on the sound

principles that the longer an inmate is

isolated following the commission of a

crime the more the detention takes the

form of an accusation, and that counsel

can ameliorate the adverse consequences

of detention if the appointment comes

within a reasonable time of its commence-

ment, the court of appeals concluded as

follows:

... [A] prisoner, who is a

held in isolation because o

an impending investigation and

indictment related to a

serious crime, must be provid-

ed counsel, subject to the

same conditions as are appli-

cable to an indigent following

indictment, after a reasonable

time. If counsel is not so

provided [the detained inmate]

must be released into the

general prison population.

704 F.2d at 1124.

The remedy of release from detention

as an alternative to appointment of

counsel is further evidence of the court

of appeals’ profound sensitivity to the

need to strike an appropriate balance

between competing interests of adver-

saries. Thus, the government is at all

times free to choose between releasing

the detainee into the prison population

or appointing counsel while continuing

the accused's administrative isolation.

Although its decision had breathed

life into a constitutional guarantee

that previously had no real meaning in

the prison context, the court of appeals’

ruling stems not from obtuse theory but

from lawfully promulgated prison regula-

tions to provide specificity to the

constitutional right to counsel and to

establish an appropriate measure for the

“reasonable time" standard by which the

right is guided. Those prison regula-

tions, the majority astutely observed,

“create a condition of confinement that

a.)

embodies an accusation which generates a

Sixth Amendment right to the assistance

of counsel.” Id. at 1124.

Specifically, prison regulations

mandate that the maximum stay in isola-

tion for purposes of discipline is

ninety days. So when that ninety day

period is exceeded, objective criteria

exists from which to infer that the

detention is for a purpose other than

discipline. While the rule fashioned by

the court of appeals allows the govern-

ment to refute an inmate's claim that

his continued detention is due to a

pending investigation or trial for a

criminal act, the lapse of ninety days

is the measure of a “reasonable time”

after which counsel presumptively is

necessary to assure that the accused's

right to a fair trial is preserved.

If the government elects to provide

the detained inmate with counsel, the

objective is realized because a legally

trained advocate will assume responsi-

bility for preparing and preserving a

defense to the impending’ criminal

charges even though the accused remains

in isolation indefinitely. But the same

end of preserving the right to a fair

trial is served if, at the government's

option, the inmate is released from

detention to pursue his own orderly

investigation of the alleged crime and

his potential defenses prior to formal

indictment.

To be sure, the defendant's right

to a fair trial free from the taint of

all overreaching is still at risk even

in this scheme because the investigatory

handicap that is the underlying evil may

well attach prior to the passage of his

ninety days in isolation. The elimina-

tion of all such risk, the majority in

Gouveia recognized, is not possible

except in a vacuum. But as a decision

cognizant of fiercely competing yet

equally compelling interests, United

States v. Gouveia is exemplary in its

achievement of a proper balance consis-

tent with the ends of justice as well as

orderly prison administration.

C. United States v. Gouveia:

A Silhouette Of Sixth Amendment

Precedent And Policy

If nothing more than companionship

and facilitation for the criminally

accused were deemed the values of

attorney representation, the Sixth

Amendment's assurance that "In all

criminal prosecutions, the accused shall

enjoy the right ... to have the Assist-

ance of Counsel for his defence" would

be an empty platitude. In a system of

adversary judicial proceedings, however,

counsel’s role is not akin to a mission

of mercy. An advocate trained in the

science of law, counsel functions "to

remove disabilities of the accused"

United States v. Ash, 413 U.S. 300, 312

(1973), and to minimize the "danger of

conviction because [the defendant] does

not know how to establish his innocence."

Gideon v. Wainwright, 372 U.S. 335, 345

(1963). But beyond the individual

interests of the defendant in avoiding

an unjust conviction, the presence of

counsel for .the accused serves. the

greater public interest of guarding the

integrity of the fact-finding process

and enhancing the fairness of the

adversary system of justice. United

States v. Wade, 388 U.S. 218 (1967).

Against this background, an analyt-

ical framework has surfaced from the

decisions of this Court that serves as a

guide for resolving Sixth Amendment

right to counsel issues. By its own

terms the Sixth Amendment refers to

rights in connection with criminal

prosecutions, yet the decisions of this

Court confirm that a defendant is

entitled to the assistance of counsel

not only at trial, but "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." United States v.

Wade, 388 U.S. at 226. Accord, Coleman

v. Alabama, 399 U.S. 1 (1970); Gilbert

v. California, 388 U.S. 263 (1967).

Regarding the requirement’ that

there be a "prosecution", this Court has

held that the right to counsel attaches

only at or after the time that adversary

judicial proceedings have been initiated

against an accused because that event

marks the point at which the adverse

positions of government and defendant

have solidified. Kirby v. Illinois, 406

U.S. 682, 688, 689 (1972). Beyond that,

however, the determination must be made

as to whether a specific pretrial event

is a critical stage requiring’ the

presence of counsel "to preserve the

defendant's ... right meaningful to

cross-examine the witnesses against him

and to have effective assistance of

counsel at the trial itself."" United

States v. Wade, 388 U.S. at 227.

One need not assail the wisdom or

logic of the two-stage analysis outlined

above to recognize that the Sixth

Amendment right to counsel as it arises

in the context of a prison crime prose-

cution is peculiar and therefore ill

suited to an analysis born of other

considerations. Thus, Kirby's effort to

declare by reference to traditional

procedural events the precise point at

which adversarial proceedings begin

25.

against a free citizen does not pretend

to address the alternative methods by

which the prosecutorial forces of the

government may be focused on a prisoner

suspected of a crime. Consider that,

with respect to the Fifth Amendment

privilege against self-incrimination,

this Court implicitly acknowledged that

the mechanism for safeguarding certain

constitutional rights of persons lawful-

ly incarcerated must be tailored to the

realities of the prison environment if

there is to be any protection at all.

Mathis _v. United States, 391 U.S. 1

(1968). Mathis held that a prisoner is

in custody for purposes of the Fifth

Amendment notwithstanding the argument

that the continuous nature of the

prisoner's lawful incarceration mandates

that there be more of a physical restric-

tion than mere confinement with the

general prison population. Mathis v.

United States, 391 U.S. 1, 7 (White, J.,

dissenting). Similarly, the protections

of the Sixth Amendment right to counsel

can endure in the prison context only if

the inquiry is freed of certain analyt-

ical constraints that obscure what is

actually at stake.

An assumption of the standard Sixth

Amendment analysis that looks first for

evidence that adversary judicial pro-

ceedings have been initiated and second

for an indication that the event in

question is a critical stage requiring

the assistance of counsel is that no one

not formally accused will be prejudiced

by the absence of an attorney's assist-

ance while the “government investigates

the crime. See, Kirby v. Illinois, 406

U.S. 682, 690. The theory is that a

person not yet charged wigh a crime

needs no help in coping with legal

problems or assistance in meeting his

professional adversary because he has no

adversary.

Indeed, in the investigatory stage

the government does not behave as an

adversary of the citizen who is simply a

suspect; the citizen remains free to

conduct his affairs without interference

or government restraint of any kind.

Until such time as the government

commits itself to prosecute and confronts

an accused with the prosecutorial forces

of an organized society, counsel is

presumed to be unnecessary. Moore v.

Illinois, 434 U.S. 220 (1977). Moreover,

the suspect is not in a position to

accelerate the point at which the right

to counsel will attach because, "Law

enforcement officers are under no

constitutional duty to call a halt to a

criminal investigation the moment they

have the minimum evidence to establish

probable cause [for an arrest) ..."

Hoffa v. United States, 385 U.S. 293,

310 (1966).

For prison crime prosecutions,

however, those assumptions dissolve and

the analysis produces an _ undesirable

anomaly. Granted that the prisoner-

suspect is in no better position than a

free citizen under Hoffa to force the

government's hand for the purpose of

invoking the Sixth Amendment right to

counsel, but the government need not

behave benignly towards the prisoner-

suspect as it must towards the citizen-

suspect. On the contrary, the govern-

ment can assume the role of an adversary

vis-a-vis the prisoner without its

adversarial practices having to conform

to the constitutional limitations that

control when that role is formalized by

the initiation of a charge. Segregation

of the prisoner in administrative

detention while the government builds

its case is the vivid illustration from

the case at bar that the government

functionally accuses in the _ prison

context, and then exploits that advan-

tage, without having to accuse in fact.

The resulting anomaly is that, while the

predicate of an adversary judicial

criminal proceeding has not been satis-

fied when the’ prisoner-accused is

detained indefinitely prior to being

charged, that interim period during

which the accused is helpless to take

steps to preserve his defense takes on

all of the characteristics of a "crit-

ical stage" requiring the assistance of

counsel.

Thus, a pretrial event is critical

and requires the provision of counsel if

it threatens to prejudice the defend-

ant's rights and if the assistance of an

attorney will help to avoid that preju-

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

at 227. With respect to a preliminary

hearing at which probable cause for

charging the accused with an offense is

determined, this Court held in Coleman

v. Alabama, 399 U.S. 1 (1970) that the

potential prejudice to the defendant is

that the hearing may be the vehicle for

an erroneous or improper prosecution.

Though counsel may or may not succeed in

exposing fatal weaknesses in the govern-

ment's case that cause the magistrate to

refuse to bind the accused over, coun-

sel's participation in that proceeding

nevertheless was recognized as essential

to preserve testimony favorable to the

accused of ea witness who does not appear

at trial and to discover the case

against the defendant in order. to

prepare the appropriate defense.

In much the same way, the prisoner

isolated in administrative detention is

prejudiced because, though not yet

charged, the occasion of his detention

can be exploited to facilitate an

improper prosecution. More importantly,

isolation without the aid of legal

counsel deprives the accused of the

opportunity to realize the investigatory

advantages of a lawyer's assistance that

would compensate fer his own inability

to probe. And the potential benefit of

“what a prompt and _ thorough-going

investigation might disclose as to the

facts" should never be underestimated.

Powell _v. Alabama, 287 U.S. 45, 58

(1932).

There is an additional consideration

that is even more notable in regard to

the critical characteristic of the

prisoner-accused's indeterminate deten-

tion pending the formal charge for a

prison crime. As this Court traced the

historical expansion of the Sixth

Amendment right to counsel in United

States v. Ash, 413 U.S. 300 (1973), it

noted that the expansion has come when

circumstances require counsel's partici-

pation in a pretrial event to remove

disabilities of the accused in the same

fashion that counsel compensates for the

disabilities of the layman at trial.

Ash held that the right to counsel does

not extend to the prosecution's trial-

preparation interviews with witnesses

because, "The traditional counterbalance

in the American adversary system for

these interviews arises from the equal

ability of defense counsel to seek and

interview witnesses himself." Id. at

318. Equality of access was cited in

Ash as a valuable force that removes

“any inequality in the adversary process

itself and thereby fully satisfies the

historical spirit of the Sixth Amend-

ment's counsel guarantee." Id. at 319.

C an

But without that equality of access

so important to maintaining an appropri-

ate balance in the adversarial process,

an accused is overpowered by his profes-

sional adversary at every step teken in

preparation for trial including those

that are not strictly confrontational.

The obvious disability of an isolated

prisoner who is detained because he is

about to be charged with a crime is

that, without attorney assistance, he

has no access to the evidence that would

be his defense at a time when prompt

action to discover and preserve it is

essential.

If the right to counsel is to

endure meaningfully in the context of a

prison crime prosecution, therefore, the

search for an accommodation need not

‘deviate significantly from the histor-

ical interpretation of the Sixth Amend-

ment. What is necessary, though, is to

recognize that the detention of a

prisoner because he is to be charged

with a crime is logically and concep-

tually akin to the commencement of

formal adversarial criminal proceedings

against a person whose liberty is not

already abridged by incarceration. And

because the events that transpire during

the interim period of detention "might

well settle the accused's fate and

reduce the trial itself to a mere

formality", United States v. Wade, 388

U.S. at 224, these new circumstances

justify an expansion of the right to

counsel to counteract the same dangers

that gave birth initially to the right

itself. To adhere to a rule authorizing

appointment of counsel only at or after

the time that the criminal accusation

against the isolated prisoner is formal-

ized will "convert -the appointment of

counsel into a sham and nothing more

than a formal compliance with the

constitution's requirement that an

accused be given the assistance of

counsel."" Avery v. Alabama, 308 U.S.

444, 446 (1939).

D. The Remedy

When a violation of the Sixth

Amendment right to counsel has been

established, its effect must be identi-

fied and purged to make certain that the

defendant has been effectively repre--

sented and not unfairly convicted.

United States v. Morrison, 449 U.S. 361

(1981). In the instant case, the court

of appeals found such a violation and

held that its effect was to undermine

irreparably the critical ability of the

defendants to preserve their defenses at

the early stages of the investigation.

Tailoring the remedy to an injury found

‘=.=

to be immune from an after-the-fact

cure, the court of appeals ruled that

the only certain remedy was to dismiss

the indictments.

While the court opined that preju-

dice to the defendants’ ability to

defend against the charges could be

presumed from the undisputed fact of

their lengthy administrative detention,

the majority affirmed the district court

findings in regard to some defendants'

irrevocable loss of inmate witnesses and

the deterioration of physical evidence

essential to corroborate the defendants'

testimony. United States v. Gouveia,

704 F.2d 1116, 1126 (1983).

As an abstract proposition, the

remedy for a constitutional violation in

the criminal arena need not go beyond

‘ denying the prosecution the fruits of

its transgression. Justice is served

when the taint of government

overreaching is neutralized so that the

criminal prosecution can proceed, as

nearly as possible, as if the constitu-

tional guarantee had been respected.

The exclusion of evidence obtained in

violation of the Fourth Amendment is the

clearest example of such aé_e keenly

focused remedy. That is not to suggest,

however, that a particular constitution-

al violation cannot so pervasively and

irreparably infect the process by which’

guilt or innocence will be determined

that there is no realistic prospect of

averting those adverse consequences if

the matter goes to trial. This Court's

decision in United States v. Morrison,

supra, is not to the contrary.

Where, as here, the violation of

the right to counsel is in the context

of a pretrial event, analysis of the

damage "depends upon an assessment of

those factors that made the denial

error." Coleman v. Alabama, 399 U.S. l,

18 (White, J., concurring). Thus, for

the prisoner detained because he will be

charged with a crime, this analysis

already has observed that the right to

counsel is violated because he is

functionally accused and requires

attorney assistance to compensate for

his own inability to preserve his

defense. To the extent that such a

defendant makes a showing that important

physical evidence or testimony of

witnesses unavailable at trial could

have been preserved had counsel been

appointed at the appropriate time, then

it is clear that the drastic remedy of

dismissal of the indictment is warrant-

ed.

That defendant, however, is inher-

ently disadvantaged in this task because

he is compelled to prove that his

defense has been prejudiced by the

irretrievable loss of favorable evi-

dence, the precise substance of which

cannot be determined owing to the lack

of attorney assistance to preserve it.

The nature of the violation in cases

such as this, therefore, uniquely

effects both the integrity of the

conviction and the defendant's ability

to document with precision how the

transgression prejudiced his defense.

The remedy chosen in any case involving

such a Sixth Amendment violation must

not be blind to this reality.

CONCLUSION

For the foregoing reasons, the

judgment of the court of appeals should

be affirmed.

Respectfully submitted,

RICHARD J. WIJ.SON

National Legal Aid and