Reply Brief — Moran v. Burbine

BEST AVAILABLE COPY

Supreme Court, US.

2 ae ae:

NOV 5 185

No. 84-1485

In The

Supreme Court of the United States

October Term, 1985

JOHN MORAN,

Petitioner,

BRIAN K. BURBINE,

Respondent.

PETITIONER’S REPLY BRIEF IN SUPPORT OF

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

O

ARLENE VIOLET

Attorney General of the

State of Rhode Island

Constance L. Messore

Special Assistant

Attorney General

72 Pine Street

Providence, Rhode Island 02903

(401) 274-4400

Attorne Us jor the Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

TABLE OF CONTENTS

Pages

yy) PF Te Btig se i gy Fo

ARGUMENTS:

I. THE RESPONDENT’S ARGUMENT THAT

Tl.

IV.

HIS THREE CONFESSIONS SHOULD BE

SUPPRESSED SOLELY ON THE

GROUND THAT THE POLICE LIED TO

OR DECEIVED HIS LAWYER HAS NO

FACTUAL OR LEGAL BASIS. WWW...

RESPONDENT IMPROPERLY ARGUES

THAT HE IS ENTITLED TO MORE IN-

FORMATION THAN THAT PRESCRIBED

BY THE COURT IN MIRANDA v. ARI-

ZONA, IN ORDER TO VALIDLY WAIVE

HIS MIRANDA RIGHTS. .........

RESPONDENT MISCONCEIVES HIS

FIFTH AND SIXTH AMENDMENT

RIGHT TO COUNSEL. .......... wen

RESPONDENT WAS NOT DENIED THE

FUNDAMENTAL FAIRNESS GUARAN-

TEED HIM BY THE DUE PROCESS

CLAUSE OF THE FOURTEENTH

Sc EE TE ities

GUT UUEII sxihadcnnciiiadentacienencetonnmaensdaaialaiaiaaaalehadiaie

8

il

TABLE OF AUTHORITIES

CASES

Pages

Brewer v. Williams, 430 U.S. B87 (1977) eccccccccecccecnceeneene «= 8

Brows v. Tilaseots, 422 U.S. SIO (VGTD) nanan cane caeemecssnnnee 2

Darwin v. Connecticut, 391 U.S. 346 (1968) 00D

Escobedo v. [llimots, 378 U.S. ATS (VIG) nance 6

Fare v. Michael C., 442 U.S. TOT (1979) cnc aneecececececonenesvvensosenenee 3

Michigan v. Tucker, 417 U.S. 483 (1974) — 4

Miranda v. Arizona, 384 U.S. 436 (1966) 2, 3, 4, 5, 6,8

North Carolina v. Butler, 441 U.S. 369 (1979) 0 8

Rhode Island v. Innis, 446 U.S. 291 (1980) 00 8

United States v. Gouveia, 104 S.Ct 2292 (1984) 6,7,8

CONSTITUTION

U.S. Constitution

ss FT passim

Amendment VI _.. Sir ne uty 5, 6, 7,8

Amendment XIV (Due Process) 0000 8

MISCELLANEOUS

Kamisar, *‘Brewer v. Williams, Massiah and Miranda:

What is Interrogation? When does it matter?

in Police Interrogation and Confessions

I. THE RESPONDENT’S ARGUMENT THAT

HIS THREE CONFESSIONS SHOULD BE

SUPPRESSED SOLELY ON THE GROUND

THAT THE POLICE LIED TO OR DECEIVED

HIS LAWYER HAS NO FACTUAL OR LEGAL

BASIS.

Respondent’s first argument (Respondent’s Brief

[hereinafter R.B.] 11-21) is that this Court need not re-

solve the question presented in the petition for writ of

certiorari because respondent’s confession should be sup-

pressed on the ground that ‘‘the police lied [to] or de-

ceived [respondent's] lawyer’’ (R.B. 9). This argument

lacks both factual and legal support.

First, notwithstanding respondent’s repeated asser-

tions that the police officers acted dishonestly (see, e.g.,

R.B. 9, 15, 20), there is no finding below that the police

intentionally deceived respondent’s attorney. The Su-

preme Court of Rhode Island observed that the state trial

>?

justice found ‘‘no collusion or conspiracy’? among the

police to conceal respondent trom his attorney (Pet. App.

50). Even the court of appeals concluded only that the

police acted ‘‘deliberate[ly| or reckless{ly]’’ (td. at 15

(emphasis added) ).

But, assuming arguendo, that the police officers did

intentionally deceive respondent’s attorney, that fact by

itself does not establish a violation of respondent’s con-

stitutional rights. This Court never has held that the

Constitution supplies a remedy whenever the police act

in subjective bad faith. It is elementary that government

conduct must infringe a right protected by the Constitu-

tion before that conduct can be held to violate the Consti-

tution, and respondent does not oint to any authority

1

supporting his view that a misrepresentation by a govern-

ment officer amounts to a per se constitutional violation

requiring the suppression of lawfully-obtained evidence.'

He bases his position solely upon the fact that a defense

attorney is an officer of the court, but that truism pro-

vides absolutely no support for the conclusion that any

misrepresentation by a police officer to a defense attorney

constitutes a constitutional violation.2 Moreover, as dis-

cussed below, the police officers were not required to al-

low the attorney to talk to respondent. The officers’ sub-

jective intent therefore is completely irrelevant.

1 Respondent relies upon this Court’s decision in Brown v.

Ilinois, 422 U.S. 590 (1975), but in that case the Court held that

the administration of Miranda warnings did not render admis-

sible the statement of a defendant who previously had been

arrested in violation of the Fourth Amendment. The flaw in

respondent's analogy is that respondent cannot show a prior

constitutional violation equivalent to the arrest of the defend-

ant in Brown. There accordingly is no basis for suppressing

the confessions here.

Even amicus American Bar Association acknowledges in

its brief supporting respondent (R.B. 9 n.5) that the subjective

intent of the police is not revelant in determining whether re-

spondent’s confessions should be suppressed.

2 The lawyer, of course, is not a party to the proceeding, and

any right she might have had not to be deceived is not in issue.

3 Respondent cites (R.B. 20-21) Kamisar, ‘Brewer v. Williams,

Massiah and Miranda: What is ‘Interrogation’? When Does It

Matter?,” in Police Interrogation and Confessions, (1980), but

he fails to note that the author rejects the rule espoused by

respondent (id. at 220-224).

II. RESPONDENT IMPROPERLY ARGUES

THAT HE IS ENTITLED TO MORE INFOR-

MATION THAN THAT PRESCRIBED BY

THE COURT IN MIRANDA v. ARIZONA IN

ORDER TO VALIDLY WAIVE HIS MIRANDA

RIGHTS.

Respondent does not dispute that the police read him

the warnings prescribed by this Court in Miranda v.

Arizona, 384 U.S. 436 (1966), and he does not contend

that he failed to understand those warnings.* He asserts

instead (R.B. 21-26) that the waivers of his Miranda

rights were invalid because he was not supplied with in-

formation relevant to his decision whether to waive his

rights. However, the inquiry in assessing the validity

of a Miranda waiver is whether the suspect understood

that he had a right to refuse to answer the officer’s ques-

tions and a right to counsel. /’are v. Michael C., 442 U.S.

707, 725 (1979); North Carolina v. Butler, 441 U.S. 369,

374-375 (1979). It simply is immaterial that some addi-

tional piece of information might make a suspect more or

less willing to waive his rights. Indeed, if the police were

required to supply suspects with all such information,

police interrogation would be climinated as a weapon in

the fight against crime. A_ police officer would almost

never be able to obtain a valid waiver because it would

be virtually impossible for the officer to ascertain which

information he would be required to provide to the suspect.

4 Respondent refers to his lack of education and unfamiliarity

with the criminal justice system (R.B. 22, 23-24), but he nowhere

claims that he did not understand. the warnings.

4

III. RESPONDENT MISCONCEIVES HIS FIFTH

AND SIXTH AMENDMENT RIGHT TO COUN-

SEL.

Respondent and amici also argue that the confes-

sions should be suppressed on the somewhat different

theory that the police officers’ actions violated respon-

dent’s right to counsel under the Fifth and Sixth Amend-

ments because the officers interfered with the relation-

ship between respondent and h'‘s attorney. These argu-

ments are found upon a complete misconception of the

relevant Fifth and Sixth Amendment rights. In fact, de-

fense counsel has no constitutionally-guaranteed right of

access to a suspect prior to the commencement of judicial

proceedings against the suspect.

a. The ‘right to counsel’? announced in Miranda

does not flow directly from the Fifth Amendment; it is a

‘*procedural safeguard’? designed to protect a suspect’s

Fifth Amendment privilege against compelled self-inerim-

ination. See Michigan v. Tucker, 417 U.S. 433, 444 (1974).

The scope of the ‘‘right’’ accordingly must be deter-

mined by reference to the privilege against self-incrimina-

tion that is its only souree. The Miranda Court stated

that a suspect ‘‘has the right to consult with a lawyer and

to have the lawyer with him during interrogation under

the system for protecting the privilege [against self-

incrimination]|*’ established in that case (384 U.S. at 471).

Equally significant, however, is the principle that a sus-

pect may waive his Miranda rights without consulting an

attorney (Jd. at 475, 479). Indeed Miranda plainly does

not guarantee a suspect the right to consult with counsel

in all circumstances, but recognizes the right only in the

context of custodial interrogation. Accordingly, a suspect

5)

who requests counsel need not be provided with an attor-

ney if the police decide to terminate the interrogation

(id. at 474). Thus, the Fifth Amendment ‘‘right to coun-

sel’’ is limited to the circumstance where a suspect re-

quests the assistance of counsel in connection with police

interrogation and the police elect to continue the interro-

gation.°

The argument that respondent should have been per-

mitted to consult with counsel or should have been in-

formed of the attorney’s inquiry is grounded in the notion

that the Fifth Amendment right to counsel during police

interrogation is as broad as the Sixth Amendment right

to counsel that attaches only upon the commencement of

adversary proceedings (United States v. Gouveia, 104

S. Ct. 2292 (1984)). HLlowever, as discussed above, the

Fifth Amendment right is quite limited, applying only

where needed to protect the privilege against self-inerim-

ination. The justification for requiring the police to per-

5 Here, respondent was informed that he had a right to remain

silent and a right to consult with counsel and decided that he

did not want the assistance of an attorney. Amicus argues that

the attorney’s inquiry should be construed as an assertion of

respondent's Miranda rights (see ABA R.B. 12-13). However,

Miranda leaves to the suspect, not the lawyer, the decision

whether to assert these rights, and it is plainly correct in doing

so, since the purpose of requiring warning and waiver regard-

ing counsel is to facilitate assurance that the suspect’s will has

not been overborne—A matter as to which his attorney’s wish-

es are entirely irrelevant.

6 The broad Fifth Amendment right to counsel advocated by

respondent and amici appears to be an attempt to avoid this

Court’s previous decisions construing the Sixth Amendment

right to counsel. However, it is difficuit to see why a Fifth

Amendment right to counsel divorced from the privilege

against self-incrimination would be any broader in scope than

(Continued on following page)

6

mit an attorney to consult with a suspect prior to police

interrogation appears to be that the suspect is entitled to

the advice of the attorney in deciding whether to waive

his Miranda rights. Yet a suspect who has a lawyer on

retainer or whose family has the presence of mind to

retain an attorney probably is less likely than an unrepre-

sented suspect to need such assistance of counsel; the

fortuitous intervention of an attorney is thus an irra-

tional dividing line for determining whether the assist-

ance of counsel is needed to protect the privilege against

self-incrimination. If consultation with an attorney is

warranted to protect the privilege in this context, it is

difficult to see why the advice of counsel should not be a

prerequisite to obtaining a waiver of Miranda rights in

all situations. Since Miranda itself indicates that consul-

tation with an attorney is wot necessary, there is no basis

for imposing such a requirement in the present context.

This result does not mean that a suspect can be

involuntarily subjected to prolonged incommunicado in-

terrogation; it simply places suspects who happen to have

lawyers on the same footing as suspects without lawvers.

The suspect retains the authority to end an interrogation

(Continued from previous page)

the Sixth Amendment right to counsel set forth in the text of

the Constitution.

Relying on a footnote in Miranda (see 384 U.S. at 465

n.35), that in turn refers to Escobedo v. Illinois, 378 U.S. 478

(1964), amicus American Bar Association asserts that “the Mi-

randa Court viewed police interference with communications

between the suspect and counsel as unconstitutional” (R.B.

13). However, this Court has held that Escobeclo in fact rested

upon the Fifth Amendment privilege against self-incrimination

(United States v. Gouveia, 104 S.Ct. at 2298) and the ABA’s

contention thus cannot be supported on the rational it ad-

vances.

7

at any time simply by invoking his Fifth Amendment

rights. Moreover, the Federal Government, the States,

and local government entities remain free to adopt rules

governing attorney-client access during the pre-indictment

‘period.

b. Despite this Court’s determination in United

States v. Gouveia, 104 8S. Ct. at 2296, that ‘‘the [Sixth

Amendment] right to counsel attaches only at or after

the initiation of adversary judicial proceedings,’’ respon-

dent and amici argue that the police officers’ actions vio-

lated respondent’s Sixth Amendment rights. They assert

that Gouveia concerned only appointed counsel and that

where a suspect has an existing attorney-client relation-

ship, the Sixth Amendment protects that relationship at

all stages of a criminal proceeding.’

Although this Court’s decisions concerning the Sixth

Amendment principally relate to the right to appointed

counsel, the Court has not distinguished between ap-

pointed and retained counsel. Aside from their asser-

tions that the Sixth Amendment should provide some addi-

tional protection for existing attorney-client relationships,

respondent and amici never articulate any justification

for their position. This Court has concluded that ‘‘the

‘core purpose’ of the counsel guarantee is to assure aid

at trial’’ or at certain ‘‘ ‘critical’ pre-trial proceedings”’

(United States v. Gouveia, 104 S. Ct. at 2298). The

Amendment thus does not provide any generalized pro-

tection for the attorney-client relationship so as to confer

7 Amicus American Bar Association recognizes that under this

Court’s decision in Gouveia the Sixth Amendment right to coun-

sel does not apply to pre-indictment interrogations such as the

interrogations at issue here (see R.B. 13).

8

special benefits upon suspects who happen to have an

ongoing relationship with an attorney.®

IV. RESPONDENT WAS NOT DENIED THE

FUNDAMENTAL FAIRNESS GUARANTEED

HIM BY THE DUE PROCESS CLAUSE OF

THE FOURTEENTH AMENDMENT.

Finally, respondent asserts (R.B. 36-40) that the po-

lice officers’ conduct deprived him of the fundamental

fairness guaranteed by the Due Process Clause of the

Fourteenth Amendment. He argues that even if his con

fessions were voluntary and even if the police officers did

not violate Miranda’s prophylactic rules, the admission of

the confessions into evidence was unfair. However, the

rules set forth in Miranda were designed to ensure fair-

8 Respondent at first appears to argue (R.B. 30-32) that the

Sixth Amendment right to counsel applies because an interro-

gation constitutes a critical stage of the criminal proceedings,

but he later states that he “is not asking this Court to hold that

the Sixth Amendment right to counsel attaches when the police

subject a defendaiit to custodial interrogation” (R.B. 32). In

any event, Gouveia makes clear that the right does not attach

to preindictment interrogations such as the interrogations in

the present case because respondent was not confronted with

“ ‘the prosecutorial forces of organized society, and immersed

in the intricacies of substantive and procedural criminal law’ ”

(104 S.Ct. 2298 (citation omitted)).

Respondent asserts (R.B. 32-33) that this Court’s finding

of a Sixth Amendment violation in Brewer v. Williams, 430 U.S.

387 (1977), rested in part on the fact that the police had rep-

resented to tne defendant's !awyer that the defendant would

not be interrogated. However, the Court several times noted

that the defendant's Sixth Amendment right to counsel had at-

tached because judicial proceedings nad been initiated (see

430 U.S. at 398-399, 401). The inapplicability of the Sixth

Amendment right to counsel in circumstances like the instant

case was clearly recognized in Rhode Island v. Innis, 446 U.S.

291, 300 n.4 (1980), and nothing in the Court's later jurispru-

dence provides any ground for altering that conciusion.

9

ness in police interrogations; it seems most unlikely that

the officers’ conduct could be fundamentally unfair if the

confession was obtained in compliance with Miranda.

Respondent relies upon Darwin v. Connecticut, 391

U.S. 346 (1968). However, the defendant in that case was

questioned for two entire days and ‘‘on three separate

occasions sought and was denied permission to communi-

cate with the outside world’’ (391 U.S. at 349). The

Court reversed the conviction on the ground that the de-

fendant’s confession was not voluntary (ibid.). Here, by

contrast, the courts below specifically found that respon-

dent.’s confession was voluntary (Pet. App. 116, 67, 37).

Darwin accordingly supplies no basis for finding a due

process violation in this case.

ray

CONCLUSION

For the foregoing reasons, and for such other rea-

sons as appear in his Brief, the Petitioner prays that the

judgment of the First Cireuit Court of Appeals should be

reversed. j

Respectfully submitted,

JOHN MORAN

sv His Attorneys

ARLENE VIOLET

Attorney General of the

State of Rhode Island

Constance L. Mrssore

Special Assistant

Attorney General

72 Pine Street

Providence, Rhode Island 02905

(401) 274-4400

lttorneys for the Petitioner

November 4, 1985