# Opposition Brief — Duckworth v. Eagan

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0246%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 492 U.S. 195

## Text

Supreme Court. Us.

promonene FILED
|

ae eee SEP 16 yore

JOSEPH F. SPANIOL, UR.
CLERK
Number 88-317

In The

SUPREME COURT OF THE UNITED STATES
October Term, 1987

JACK R. DUQQORTH, Warden,
Petitioner,
vs.
GARY JAMES EAGAN,

Respondent.

MOTION TO PROCEED IN FORMA PAUPERIS

The aeabove named Respondent, Gary James Eagan, by his
ettorney, Howard B. Elsenberg, respectfully alleges and shows
the Court es follows:

1. Respondent wes granted leave to proceed In forma
pauperis in this case by both the United Stetes District Court
for the Northern District of Indiana and the United States Court
of Appeals for the Seventh Circult.

2. The undersigned attorney was appointed by the Un! ted
States Court of Appeals for the Seventh Circult to represent
Respondent pursuant to the provisions of the Criminal Justice
Act of 1964, as amended.

3. Respondent remains confined et the Indiana Stete

Penitentiary et Michigan City, Indiene serving the sentence

attacked In this case.

4. Counse! believes thet Respondent remains Indigent,
unable to pey the costs of this matter.

For ‘these ressons, pursuant to Supreme Court Rule 46,
Respondent respectfully moves this Court for leave to proceed Ip
forms pauperis without the paying of costs and witnout the
necessity of printing the enclosed Brief In Opposition.

Dated this 16th day of September, 1988.

Respectfully subm!

AU for 18

104 Leser Lew Bullding
Southern I! | Inols Univers! ty
Carbondale, Illinois 62901
(618) 536-4423

ATTORNEY FOR RESPONDENT

Supreme Court. U.S.
FILED
Number 86-317
SEP le wes
In The
SUPREME COURT OF THE UNITED STATES JOSEPH seen. ge

October Term, 1987

JACK R. DUGOORTH, Warden,
Petitioner,
vs.
GARY JAMES EAGAN,
Respondent.

On Petition for Writ of Certiorar! to the
United States Court of Appeals for the Seventh Circu!lt

RESPONDENT'S BRIEF IN OPPOSITION

HOWARD B. EISENBERG

104 Leser Lew Bul! ding
Southern Ill inols University
Carbondele, Iiiinols 62901
(618) 536-4423

ATTORNEY FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW
1. Did the police properly comply with the requirements of
Miranda y. Arizone, 384 U.S. 436 (1966) when they Informed
Respondent, prior toe custodial interrogetion, thet a! though
he hed the right to counsel, "Lwle have no way of giving you s
lawyer but one wil! be appointed for you, If you wish, If and

when you go to court."

2. Should this Court exercise its discretion to review the
edmissibility of Respondent's second statement when there Is no
record in elther stete or federse! court of the circumstences of
thet statement and when the only reilef granted by the Court of

Appee!s wes to remand the case to the District Court for fact

finding?

TABLE OF CONTENTS

ARGUMENT
1-8

1. THE DECISION OF THE COURT OF APPEALS 1S CONSISTENT 1-6

LISHED LAW IN THE cy j
DECISIONS OF OTHER cums’ oe a SERIE OF We

A. The Decision In thi
S Case was
Well Estab) Ished Law In the — “as 1-2

B. The Decision In this Case Is Consistent with

C. The Warnings Given In
thi
Letter and Spirit of ca rennen te 5-6

Il. GIVEN THE Lack OF EV!
DENTIARY
—. senmmease FEDERAL COURT, Rev ie or eines =
amy SECOND STATEMENT 1S CLEARLY PRe-

Conc! usion

TABLE OF AUTHORITY
Cases
Brooks vy. State, 229 A.2d 833 (Del. 1979)
Brown v. State, 396 S.2d 137 (Ala. App. 1981)

Gallfornia vy, Prystock, 453 U.S. 355 (1981)

, 464 Pa, 349,
399 A.2d 111 (1979)

Coyote vy. United States, 380 F.2d 305 (10th Cir.
1967), cert. denied, 389 U.S. 992 (1967)

Cribbs v. State, 378 S$.2d 316 (Fia.App. 1980)
Glipin vy. United States, 415 F.2d 638 (5th Cir. 1969)

aackson vy. Virginia, 443 U.S. 307 (1979)

Kilnger vy. United States, 409 F.2d 299 (8th Cir.
1969), cart. denied, 396 U.S. 859 (1969)

Massimo vy. United States, 463 F.2d 1171 (2nd Cir.
1972), cert. denied, 49y U.S. 1117 (1973)

Miranda vy. Arizona, 384 U.S. 436 (1966)
Moore v, State, 25! Ark. “%0, 472 S.W.2d 940 (1971)

» 260 Cal.App.2d 705, 6/ Cal.
Rptr. 347 (1968)

2 Ce!.App.3d 510, 82 Cal. Rptr.
393 (1969)

State v. Cassel|, 602 P.2d 410 (Alaska 1979)
State v. Creach, 77 Wash.2d 194, 41 P.2d 329 (1969)
State v. Dess, 184 Mont. 116, 602 P.2d 142 (1979)
State v. Grierson, 92 Iida. 155, 504 P.2d 1204 (1972)
State v. Robbins, 4 N.C.App. 463, 167 S.E.2d 16 (1969)

Page

> 2...
w

2
2
2
2
2
2

TABLE OF AUTHORITY
Cont! nued

Cases

Sullins v. United States, 389 F.2¢ 985 (10th Cir.
1968)

United States vy. Contreras, 667 F.2d 976 (11th Cir.
1982), cert. denied, 459 U.S. 849 (1982)

United States v. Garcia, 431 F.2d 134 (9th Cir. 1970)
United States vy. Lacy, 446 F.2d 511 (5th Cir. 1971)
United States v. Nos, 443 F.2d 144 (9th Cir. 1971)

546 ©.2d 1298 (7th Cir. 1976)

» 467 F.2¢
1248 (7th Cir. 1972)

Mcight vy. North Carolina, 483 F.2d 405 (4th Cir.
1973), cert. denied, 415 U.S. 936 (1974)

Page

Number 88-517

; In The
SUPREME COURT OF THE UNITED STATES

October Term, 1987

JACK R. DUCKWORTH, Warden.
Petitioner,
vs.
GARY JAMES EAGAN,
Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

ARGUMENT
!
THE DECISION OF THE COURT OF APPEALS IS CONSISTENT WITH PREVIOUS
DECISIONS OF THIS COURT, LONG ESTABLISHED LAW IN THE CIRQUIT,
AND THE MAJORITY OF DECISIONS OF OTHER COURTS.

A. The Decision In this Cease was Cons!stent with Wel!
Estabi ished Law In the Circult.

The Interrogation in this case took place In 1982, a full
decade after the United States Court of 4ppeals for the Seventh
Circult ruled thet these precise admonitions violated the
mandate of Miranda vy. Arizona, 584 U.S. 4356 (1966), United

States ex rel, Wililam vy. Twomey, 467 F.2d 1248 (7th Cir. 1972).
Severe! yeers leter Milliam wes reaffirmed by the Court of

Appesis in linited States ex rel. Piacek v. State of liiinols,
546 F.2d. ‘298, 1300 (7th Cir. 1976). The decision In this case

simply reaffirmed wel! estab! ished jew in the Circult.

B. The Decision in this Case Is Consistent with the
Majority of Cases Reising this Precise issue.

Without question, there Is a split of authority on the
question of the validity of Miranda warnings which Inform the
suspect thet although he hes the right to counse!, the po!l!ce
"have no wey of giving you e lawyer, but one w!!! be eppo!nted
for you, If you wish, If and when you go to court." Contrary to
the Impression created by the Stete's Petition, however, the
majority of courts which have considered the valid'ty of these
precise Miranda wernings heave found them to be fatally defective
because they condition the suspect's right to counse! on his
eppeerance In court. This Is certalniy true of state appe! iate
courts, Brown vy. State, 396 $.2d 137 (Ala.App. 1981); State y.
GCasseli, 602 P.2d 410 (Alaska, 1979); Moore vy. State, 25! Ark.
436, 472 S.W.2d 940 (1971); People v. Clark, 2 Cal.App.3¢ 510,
62 Cal.Rptr. 393 (1969); Srooks vy. State, 229 A.2¢d 853 (De!.
1979); Cribbs vw. State, 378 S.2d 316 (Fie.App. 1980); State vy.
Grierson, 95 Ide. 155, 3%4 P.24 1204 (1972) (dictum); State y
Carpenter, 211 Kan. 254, 505 P.2d 755 (1973); State v. Dess, 184
Mont. 116, 602 P.2d 142 (1979); State v. Robbins, 4 N.C.App.
463, 167 S.E.2¢ 16 (1969); Commonwealth vy. Johnson, 484 Pe. 349,
399 A.2u 111 (1979); State vy. Creach, 77 Wash.2d 194, 461 P.2¢

329 (1969).

The circults ere split on the propriety of these
ednon! tions. The Second and Fourth Circults havo refused to
overturn convictions besed on substantially simiier Miranda
wernings, Massimo yv. United States, 4635 F.2d 117! ¢2nd Cir.
1972), art. denied, 409 U.S. 1117 (1973); Mright v. Nerth
Carolina, 4835 F.2d 405 (4th Cir. 1973), cart, deniad, 415 U.S.
936 (1974). The Fifth and Ninth Circults have split on the
Issue, both upholding end rejecting the specific lenguege
Involved in this cease. compare, Glipin vy. United States, 415
F.2d 88 (5th Cir. 1969) with United States vy. Lacy, 446 F.2d
511 (5th Cir. 1971), end United States vy. Garcia, 4351 F.2d 134
(9th Cir. 1970) with United States vy. Noa, 445 F.2d 144, 146
(9th Cir. 1971).

The Tenth Circult. In reversing a conviction, noted:

+-we think the sentence: “we heave no way of giving you

e ltewyer, but one wil! be appointed for you, If you

wish, If end when you go to court" itmnedletely

following e stetement of a present right to retained

and appointed counsel Is iikely to confuse an

unsophisticated mind.

Sulilns »v. United States, 389 F.2d 965, 986 fn. 2 (10th Cir.
1968). The prior decision relied upon by Petitioner (Petition
p- 12), Ooyote v. linited States, 580 F.2d 3505, 307 (10th Cir.
1967), cert. denied, ~89 U.S. 992 (1967) was not dealing with
the same type of admonitions Involved In this appeal.

The First, Third, Sixth, Elghth®*, and District of Columble

Circults heave not dealt with the precise issue raised in this

case.

Of perticuler interest Is one of the most recent cases
desiing with this Issue, United States vy. Contreras, 667 F.24
976 (11th Cir. 19862), cert. denied, 459 U.S. 849 (1982).
Petitioner contends (Petition, p. 13) ‘thet (Contreras Is
contrary fo the decision of the Court of Appee!s in this case
(Petition, p. 13). A complete reading of the decision, however,
reveeis thet It supports the action of the Court of Appeals
here. In Contreras the eccused wes informed oniy thet counse!
could be eppolnted by the court. The Eleventh Circuit
considered the Impact of this Court's decisior - Callfornia vy.
Prysock, 4535 U.S. 355 (1981) on Miranda warnings which Informed
the defendant ‘thet counse! would heve to be aopointed by the
court. On pege 135 of the Certiorar! Petition the State quotes
some of the Eleventt Circult's reasoning. immediately fo! iowing
the quoted the lenguage, however, the court sald:

Pryseck thus stands for the proposition thet e Miranda

warning Is adequate if It fully Informs the accused of

his right to consul? with counse! prior to questioning

end
Qn some future event. (emphes!s added)

667 F.2¢ at 979. Following this observation is a footnote which

gives es examples of improper warnings @ statement that counse!

"The Eighth Circult case relied upon by Petitioner, Ki longer
uw. United States, 409 F.2d 299 (8th Cir. 1969), cart, denies,
396 U.S. 859 (1969) did not Involve e Miranda warning which
conditioned the right to counsel on some future event, Le,
counse! would only be provided "If and when" the suspect went to
court.

would be avaliable "if" the suspect went to court, citing,
United States v. Garcis. supra., Giipin v. United States,
supre., end Peopie vy. Bolinski, 260 Cal.App.2d 705, 718, 67
Cal.Rptr. 347 (1968). It Is thus apperent thet the Eleventh
Circult would find the Instant warnings to be conditione! end,
thus, Invalid.

Respondent readily acknowledges that there Is e split of
suthority on the precise issue presented here. However, the
majority of the decided cases ere in accord with the Seventh
Circult's decision here. In addition, this Is an Issue which
wes hotly |itigeted in the decade following Mirands. it Is not
® question which Is belng currentiy I!tigated. indeed, as
demonstrated above, it Is only because the authorities falied to
follow wel! estebi ished jaw In the Circult that thi«= case arose.
This Issue hes been resolved in the Seventh Circult, It Is not
being currently I!itigeted elsewhere, end there Is no occasion

for this Court to consider the questior now.

C. The Warnings Given In this Case Violated the Letter
and Spirit of Miranda.

Petitioner engeges in some prosecutorise! wishful thinking
In asserting et pege 9 of the Petition thet recent decisions of
this Court cest doubt on the decision of the Court of Appeals in
this case. While It may be helpful to Petitioner to suggest
thet this cease iInvo'ves “wagic words" (Petition, p. 9) or a
"hypertechnica! app! ication of Miranda” (Petition, po. 11), such

Is clearly not the case. The admonitions ef forded Respondent
here violated the letter and spirit of the Miranda dec!sion.

The warnings given pleiniy sey thet Eagan could not have an
attorney to assist him unless he went to court. “hus, If he did
not go to court, he would not get en aettorney. If the
Interrogation was prior to his appearance In court there was "no
wey" he could obtein one, If indigent. Manifestiy these
wernings misstated s centre! requirement of Miranda--thet
counse! be provided prior to the Interrogetion. Here the

\ warnings were invalid because they condition the right to
counse! on appearing In court.

The Issue here Is not one of semantics--!t Is @ question of
Respondent's substentive rights under the Fifth and Fourteenth
Amendments. The warnings can only be read in one wey--Tto deny
Respondent's right to counse! during the Interrogetion. This Is
whet Miranda prohibited, nd this Is why the decision of the
Court of Appeals Is correct and entirely consistent with the

decisions of this Court.

a
GIVEN THE LACK OF A EVIDENTIARY RECORD IN EITHER THE STATE OR
FEDERAL COURT, REVIEW OF RESPONDENT'S SECOND STATEMENT IS
CLEARLY PREMATURE.
Petitioner elso asks this Court to review the ed!ss!b!! | ty
of Eagan's second statement, obtelned efter he was efforded jess

defective Mirands warnings. Respondent submits thet such Issue

Is not ripe for consideration by this Court. The remedy grented
by ‘the Court of Appeals was to remand this case to the District
Court with directions to grant Respondent an evidentiary hearing
on the admissibiiity of the statement given after the second set
of Miranda warnings. Petitioner apparentiy ergues thet the
statement given efter these more correct admonitions wes
edmissibie end thet remend |s not warranted. “he problem with
this argument Is thet there was no evidentiary hearing held In
the District Court Initially and there Is |!terally no record of
whet occurred In the state court. indeed, the following Is the
entire record of the stete court proceedings on the
ednissibility of Respondent's confess!ons:

Comes now the Stete of indiane by its Prosecuting

Attorney, by M"eputy Prosecutor, "enle!l Bella, and

comes eiso the Defendant, Gary James Eagen (s!c), In

his own proper person and by Counsel, Devid Schnelder,

In open court, end this cause Is submitted on

Defendant's Motion to Suppress Written Stetements.

Evidence Is heerd and Arguments ere hed, and the Court
being duly edvised, now denies Motions to Suppress.

Stete Court Record, p. 39.

While Petitioner asks this Court to grant deference to the
stete court's factual findings, 't Is perfectiy apparent thet no
fectue! findings were made in the Indiana courts. There Is no
transcript of the suppression hearing, end the trial court made
no findings of fect. “hile the Indlene Supreme Court found the
statements “voluntery", thet Court hed no record before It upon
which to make such e determination. Even assuming thet normal ly

ee

e stete appellate court's "findings of fects” would be ent! ti«J
to deference when e federe! court reviews on habeas corpus,
certeiniy the law cannot be that the reviewing federa! court Is
bound to accept the state appellate court's fectua!
determination when there is no record upon which to bese such
findings and when the Judge who actually heard the evidence made
no findings of fect. Certeiniy, It would be unconst! tutional!
for the Court to defer to the state court under such
circumstances, cf. Jackson v. Virginia, 445 U.S. 307 (1979)
(unconstitutional! for state to convict when no reasonable trier
of fact could find evidence sufficient).

Given the tote! lack of evidentiary record upon which to
make any decision regerding the second statement, ‘this is
clearly not the sort of case which should be considered by this

Court In the exercise of Its discretion.

CONCLUSION
For the reasons specified herein, Respondent respectful /y
urges the Court to deny the Instent Petition for Writ of

Certiorar!.

HOWARD B. EISENBERG
104 Lesar Law Bull ding
Southern Ill inols Univers! ty
Carbondale, Ii!!inols 290!
(618) 536-4425

ATTORNEY FOR RESPONDENT

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0246%3A3. Public record. Not legal advice.