Amicus Curiae Brief — Moran v. Burbine

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Supreme Court, U.S.

FILED

No. 84-1485 AUG 23 985

seiiietineteniiieteriiiaeiaahiain tian iittala JR.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

JOHN MORAN,

RHODE ISLAND DEPARTMENT OF CORRECTIONS,

Petitioner,

BRIAN K. BURBINE,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF AMICUS CURIAE OF

THE AMERICAN BAR ASSOCIATION

IN SUPPORT OF RESPONDENT

WILLIAM W. FALSGRAF *

President,

American Bar Association

STEVEN H. GOLDBLATT

CHARLES G. COLE

750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5000

* Counsel of Record

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TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE AND SUM-

nT IEE sscatiesiniinnidessianeenssietbicstikanaeesnediensmas 1

ARGUMENT:

AN INDIVIDUAL CANNOT KNOWINGLY OR

VOLUNTARILY RELINQUISH THE CONSTI-

TUTIONAL RIGHT TO COUNSEL BEFORE

AND DURING INTERROGATION IF THE

POLICE HAVE BEEN INFORMED AND FAIL

TO ADVISE THE INDIVIDUAL THAT COUN-

SEL HAS IN FACT BEEN SECURED FOR HIM

AND WOULD ACT AS HIS LAWYER IF THE

POLICE INTERROGATED HIM ....WW 0. 6

IIT scales tuietisdliehiildiiidiheneinienenmmebpidnesetiiteniiiicdnidataneanss 16

TABLE OF AUTHORITIES

Cases: Page

Blanks v. State, Ga. ——, 330 S.E.2d 575

| <osuceciocinsnumiaZ an 5, 11,14

Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d

BED CITT aeeeenececenccersecennscscntpietnamaee 5, 11,14

Commonwealth v. McKenna, 355 Mass. 313, 244

Re EF Fe 5, 11,14

Commonwealth v. Sherman, 389 Mass. 287, 450

Oh Fe a 4

Davis v. State, 287 So.2d 399 (Fla. App. 1974) -....... 14

Dunn v. State, No. 248-84 (Tex. June 26, 1985),

summarized, 37 Crim. L. Rep. (BNA) 2274

0 Ae | EE ee 4

Elfadl v. Maryland, 61 Md. App. 132, 485 A.2d 275,

cert. denied, 303 Md. 42, 491 A.2d 1197, petition

for cert. filed, 54 U.S.L.W. 3019 (U.S. June 21,

NN Oe 4,14

Escobedo v. Illinois, 378 U.S. 478 (1964) -.............. 6,13

Fare v. Michael C., 442 U.S. 707 (1979) -.................. 2

Lewis v. State, 695 P.2d 528 (Okla. 1984) —.............. 4,11

Lodowski v. State, 302 Md. 691, 490 A.2d 1228,

petition for cert. filed, 54 U.S.L.W. 3019 (U.S.

June 21, 1985) (No. 86-238) ................................. 4,11,14

Miranda v. Arizona, 384 U.S. 436 (1966) -............. passim

New York v. Quarles, 104 S.Ct. 2626 (1984) _........ 9

People v. Donovan, 13 N.Y.2d 148, 193 N.E.2d 628,

y PAG’ F Fi eee 13, 14

People v. Smith, 93 Ill.2d 179, 422 N.E.2d 1325

(| RRR ner 4,11

Rhode Island v. Innis, 446 U.S. 291 (1980) ............. 9

Rogers v. Richmond, 365 U.S. 534 (1961) —............ 5

Scott v. Illinois, 440 U.S. 367 (1979) —..........00........ 15

State v. Beck, 687 S.W.2d 155 (Mo. 1985) (en

|) CET 5, 12,14

State v. Blanford, 306 N.W.2d 93 (Iowa 1981) ........ 12

State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979),

cert. denied, 446 U.S. 945 (1980) 0... 5, 10,14

State v. Jackson, 303 So.2d 734 (La. 1974) ............. 5, 11,14

State v. Jones, 19 Wash. App. 850, 678 P.2d 71

tN ..-.---D, 11, 14

iii

TABLE OF AUTHORITIES—Continued

Page

State v. Matthews, 408 So.2d 1274 (La. 1982)........ 5, 11

United States v. Foley, 735 F.2d 45 (2d Cir. 1984),

cert. denied sub nom. Edler v. United States, 105

ccsemeuse 12

United States v. Gouveia, 104 S.Ct. 2292 (1984)... 13

United States v. Scalf, 708 F.2d 1540 (10th Cir.

a eumtunonnancccoone 9

Weber v. State, 457 A.2d 674 (Del. 1983)... 4,11,14

Constitution:

U.S. Const. :

NE IE passim

SNS ISS 6, 13, 15

Amend. XIV (Due Process) .............0-0--- 6

Other Authorities:

American “ar Association, Model Code of Profes-

sional Responsibility, DR 2-103(A), DR 2-

Cee ectnaupesneecves 15

American Bar Association, Model Rules of Profes-

sional Conduct, Approved Draft 1983 15

American Bar Association, Standards for Criminal

EES 3,9

American Bar Association, Standards for Criminal

Justice 5-7.1 and Commentary ........... 3,10

Burger. Introduction: The ABA Standards for

Criminal Justice, 12 Am. Crim. L. Rev. 251

a cemsuebunenmens 2

Kamisar, Brewer v. Williams, Massiah and

Miranda: What is “Interrogation”? When does

it Matter? 67 Geo. L.J. 1 (1978) 0.000. 14

a Pi el a at =)

Ors

aie

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1485

JOHN MORAN,

RHODE ISLAND DEPARTMENT OF CORRECTIONS,

- Petitioner,

BRIAN K. BURBINE,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF AMICUS CURIAE OF

THE AMERICAN BAR ASSOCIATION

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

AND SUMMARY OF ARGUMENT

The American Bar Associet*- (hereinafter ABA) is a

voluntary, national membership organization of the legal

profession. Its over 300,000 members come from every

state and territory and the District of Columbia. Its

constituency includes prosecutors, public defenders, pri-

vate lawyers, trial and appellate judges at the state and

federal levels, legislators, law professors, law enforcement

and corrections personnel, law students, and a number of

nonlawyer “associates” in allied fields. Since its incep-

tion over 100 years ago, the ABA has taken an active

interest in the improvement of the administration of

justice and in increasing the availability and quality of

legal counseling to those who need it.

The ABA Standards for Criminal Justice (2d Ed. 1980)

(hereinafter ABA Standards) are a comprehensive set

of “guidelines and recommendations intended to help

criminal justice planners design a system, set goals and

priorities to achieve it, and propose procedures for adop-

tion by the legislature, courts, and practitioners to op-

erate and keep it viable—ail targeted toward achieving

a criminal justice system that is fair, balanced, and con-

stitutionally responsive to the needs of today and the

future.” Jd. at XX. The first edition of the Standards

was described by the Chief Justice as the “single most

comprehensive and probably the most monumental under-

taking in the field of criminal justice ever attempted by

the American legal profession in our national history.” *

The Standards reflect this Court’s view—strongly en-

dorsed by the ABA—that “the lawyer occupies a critical

position in our legal system because of his unique ability

to protect Fifth Amendment rights of a client undergo-

ing custodial interrogation.” Fare v. Michael C., 442 U.S.

707, 719 (1979). More importantly, they give effect to

the Court’s landmark decision in Miranda v. Arizona,

384 U.S. 436 (1966), which recognized for the first time

that the Fifth Amendment privilege against self-incrimi-

nation applies to custodial interrogation. The Miranda

Court, to give full effect to the exercise of the Fifth

Amendment privilege, created a right to counsel before

and during interrogation which could be “waived” in

very limited circumstances.

The ABA Standards accordingly state that counsel

must be provided to the accused as soon as possible after

custody begins and they place an affirmative burden on

1 Burger, Introduction: The ABA Standards for Criminal Justice,

12 Am. Crim. L. Rev. 251 (1974).

law enforcement agencies to facilitate communication be-

tween lawyers and individuals held in custody. (ABA

Standard 5-5.1):

“Counsel should be provided to the accused as soon

as feasible after custody begins, at appearance be-

fore a committing magistrate, or when formal

charges are filed, whichever occurs earliest. The au-

thorities should have the responsibility to notify the

defender or the official responsible for assigning coun-

sel whenever a person in custody requests counsel or

is without counsel.”

Standard 5-7.1 also provides:

“A person taken into custody or otherwise deprived

of liberty should immediately be warned of the right

to assistance from a lawyer. This warning should be

followed at the earliest opportunity by the formal

offer of counsel, preferably by a lawyer, but if that

is not feasible, by a judge or magistrate. The offer

should be made in words easily understood, and it

should be stated expressly that one who is unable to

pay for adequate representation is entitled to have it

provided without cost. At the earliest opportunity a

person in custody should be effectively placed in com-

munication with a lawyer. There should be provided

for this purpose access to a telephone, the telephone

number of the defender or assigned-counsel program,

and any other means necessary to establish com-

munication with a lawyer.”

Both Miranda and the ABA Standards recognize that

representation by lawyers is critically important in the

early stages of the criminal justice process. The validity

of this premise has been challenged in this case. Essen-

tially, the Court must decide whether the Constitution

permits the police to frustrate a lawyer’s attempts to

counsel a suspect who is held in custody and who is

unaware that the lawyer has been retained for him. The

Court must also decide whether the individual can know-

ingly and voluntarily “waive” his Miranda right to coun-

sel without knowing that he, in fact, has a lawyer.

The ABA is deeply concerned that, if the police may

constitutionally prevent any communication between a

lawyer and an individual held in isolation, an important

right to legal representation will be lost. The lawyer’s

counseling role in the early stages after arrest could thus

be retarded by the police who, armed with a routine

Miranda waiver of the abstract right to a lawyer, will

be free to treat the real lawyer as an uninvited intruder

in the post-arrest interrogation process. A lawyer seek-

ing to fulfill his responsibility to aid a client in this set-

ting will be powerless to de anything.

‘Many cases decided across the country demonstrate

that there is cause for concern as to such police tactics.*

2 In all but the last two of the following cases, the Court excluded

the statement(s) obtained. Elfadl v. Maryland, 61 Md. App. 132, 485

A.2d 275, cert. denied, 303 Md. 42, 491 A.2d 1197, petition for cert.

filed, 54 U.S.L.W. 3019 (U.S. June 21, 1985) (No. 85-24) (lawyer

retained by defendant’s wife refused permission to communicate with

defendant or have him informed of counsel’s presence) ; Lodowski v.

Maryland, 302 Md. 691, 490 A.2d 1228 (1985), petition for cert. filed,

54 U.S.L.W. 3019 (U.S. June 21, 1985) (No. 85-23) (police prevented

communication between lawyer and defendant and did not tell defend-

ant that lawyer was present) ; Dunn v. State, No. 248-84 (Tex. June

26, 1985), summarized, 37 Crim. L. Rep. (BNA) 2274 (July 17, 1985)

(suspect not told that his wife had retained an attorney who was

close at hand) ; Lewis v. State, 695 P.2d 528 (Okla. 1984) (lawyer

hired by defendant’s parents misdirected by sheriff throughout

jail and courthouse while defendant, unaware that parents had

retained attorney, was being interrogated in another part of the

building) ; Commonwealth v. Sherman, 389 Mass. 287, 450 N.E.2d

566 (1983) (police failed to honor lawyer’s request to be present

during interrogation and failed to inform suspect of the request) ;

Weber v. State, 457 A.2d 674 (Del. 1983) (defendant’s father and

attorney hired by the father refused access to defendant; police

failed-to inform defendant of lawyer’s presence) ; People v. Smith,

93 Ill.2d 179, 442 N.E.2d 1325 (1982) (associate of defendant's

retained lawyer denied access to client based on fabricated claim

that defendant was undergoing drug withdrawal and would not be

interrogated in the near future; individual never told of lawyer’s

attempt to see him although he was given card lawyer left for

Our system of criminal justice, however, is accusatorial,

not inquisitorial. Rogers v. Richmond, 365 U.S. 534, 541

(1961). The police should not have the authority to

reject unilaterally the credentials of a lawyer retained by

a custodial suspect’s family or friends. The isolated sus-

pect is entitled to know that a lawyer has been retained

and that the lawyer has requested to represent him dur-

ing interrogation. Without this knowledge, the suspect

cannot knowingly waive his Fifth Amendment rights to

consult with counsel and have counsel present during

interrogation.

him); State v. Matthews, 408 So.2d 1274 (La. 1982) (attorney’s

request to speak with defendant refused and instruction to cease

interrogation ignored) ; State v. Haynes, 288 Or. 59, 602 P.2d 272

(1979), cert. denied, 446 U.S. 945 (1980) (lawyer retained by de-

fendant’s wife was told where defendant was being held but the

police moved him before lawyer could offer counsel and defendant

never tcld of lawyer’s request to offer counsel) ; State v. Jones, 19

Wash. App. 850, 678 P.2d 71 (1978) (defendant not informed

that counsel had been retained for him or that attorney had in-

structed client not to speak); Commonwealth v. Hilliard, 471 Pa.

318, 370 A.2d 322 (1977) (lawyer first misinformed that defendant

was not in custody and later denied access to defendant until he

confessed; defendant was not told of lawyer’s presence until he

confessed) ; State v. Jackson, 303 So.2d 734 (La. 1974) (lawyer

retained by defendant’s family, denied permission to see defendant

who was not told of the lawyer’s presence); Commonwealth v.

McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969) (lawyer retained

by suspect’s mother asked to see client; police misinformed lawyer

of suspect’s whereabouts and did not indicate that he was already

being interrogated); Blanks v. State, Ga. ——, 330 S.E.2d

575 (1985) (police finished taking confession before advising de-

fendant that a lawyer was present who wished to see him); State

v. Beck, 687 S.W.2d 155 (Mo. 1985) (en banc) (lawyer obtained

by defendant’s mother at defendant’s direction given before he

was in custody; lawyer called the police and asked to be notified

when defendant was arrested but at prosecutor’s suggestion police

did not so notify lawyer when defendant was arrested in Florida,

nor did they advise defendant of lawyer’s request).

ARGUMENT

AN INDIVIDUAL CANNOT KNOWINGLY OR VOLUN-

TARILY RELINQUISH THE CONSTITUTIONAL

RIGHT TO COUNSEL BEFORE AND DURING INTER-

ROGATION IF THE POLICE HAVE BEEN IN-

FORMED AND FAIL TO ADVISE THE INDIVIDUAL

THAT COUNSEL HAS IN FACT BEEN SECURED

FOR HIM AND WOULD ACT AS HIS LAWYER IF

THE POLICE INTERROGATED HIM.

In the ABA’s view, the constitutional issue presented

for the Court’s decision is whether the Fifth and Four-

teenth Amendments permit the police to interrogate an

individual in the absence of counsel if they fail to dis-

close to him that he in fact has a lawyer who previously

contacted the police and told them “she would act as

[his] counsel in the event that the police intended to

... question him.” (Pet. App. 49).

In deciding the issue, the Court must look to those

cases which describe the pertinent rights and the circum-

stances in which they can be validly waived. In 1964, the

Court found a Sixth and Fourteenth Amendment vio-

lation in a case in which the police, inter alia, prevented

counsel from seeing a client during interrogation. Esco-

bedo v. Illinois, 378 U.S. 478 (1964). In 1966, the land-

mark case of Miranda held that the Fifth Amendment

privilege against self-incrimination protected an individ-

cai held in police custody. The individual had both a right

to refuse to be interrogated and a right to the assistance

of counsel before and during custodial interrogation. To

ensure that individuals could fully exercise these rights,

the Court mandated that specific warnings of these rights

be given to those in custody. While the Court did not

foreclose the possibility that the individual could waive

these rights, it insisted that such waiver be knowing and

intelligent. 384 U.S. at 474-75.

The Miranda opinion shows that the Court wished to

dispel the compulsion inherent in custodial surroundings

and to guarantee, as best possible, that individuals were

not forced to give up their constitutional rights while

in isolation. 384 U.S. at 458-59. It was not enough, how-

ever, simply to insure that the individual knew he had

a right to remain silent and therefore did not have to be

interrogated. The Court emphasized the desirability of

a lawyer’s presence before and during custodial inter-

rogation to protect the free exercise of the privilege

against self-incrimination (384 U.S. at 466) :

“The presence of counsel, in all the cases before us

today, would be the adequate protective device nec-

essary to make the process of police interrogation

conform to the dictates of the privilege. His pres-

ence would insure that statements made in the gov-

ernment-established atmosphere are not the product

of compulsion.” *

The Court saw the lawyer’s presence at interrogation

as a fulfillment of a professional responsibility which

reflected the lawyer’s “vital role in the administration

of criminal justice under our Constitution. ...” 384

U.S. at 480-81. Miranda stopped short, however, of re-

quiring that a lawyer be present before any interroga-

tion could take place. It provided that an individual

could waive the rights to silence and counsel if the police

fully advised him of these rights and, thereafter, he

knowingly and voluntarily elected to waive them. It is

3 Later in the opinion the Court elaborated on the role of counsel

(384 U.S. at 470) :

“The presence of counsel at the interrogation may serve

several significant subsidiary functions as well. If the accused

decides to talk to his interrogators, the assistance of counsel

can mitigate the dangers of untrustworthiness. With a lawyer

present the likelihood .1at the police will practice coercion is

reduced, and if coercion is nevertheless exercised the lawyer can

testify to it in court. The presence of a lawyer can also help

to guarantee that the accused gives a fully accurate statement

to the police and that the statement is rightly reported by the

prosecution at trial.”

clear that the Court viewed such “waivers” with con-

siderable caution (384 U.S. at 474-75):

“CI]f authorities conclude that they will not provide

counsel during a reasonable period of time in which

investigation in the field is carried out, they may

refrain from doing so without violating the person’s

Fifth Amendment privilege so long as they do not

question him during that time. If the interrogation

continues without the presence of an attorney and a

statument is taken, a heavy burden rests on the gov-

ernment to demonstrate that the defendant know-

ingly and intelligently waived his privilege against

self-incrimination and his right to retained or ap-

pointed counsel. Escobedo v Illinois, 378 US 478,

490, note 14. This Court has always set high stand-

ards of proof for the waiver of constitutional rights,

Johnson v Zerbst, 304 US 458 (1938), and we re-

assert these standards as applied to in-custody inter-

rogation.”

The Court also pr scribed unfair tactics utilized to

obtain waivers (384 U.S. at 476) :

“Whatever the testimony of the authorities as to

waiver of rights by an accused, the fact of lengthy

interrogation or incommunicadeo incarceration before

a statement is made is strong evidence that the ac-

cused did not validly waive his rights. In these cir-

cumstances the fact that the individual eventually

made a statement is consistent with the conclusion

that the compelling influence- of the interrogation

finally forced him to do so. It is inconsistent with

any notion of a voluntary relinquishment of the

privilege. Moreover, any evidence that the accused

was threatened, tricked, or cajoled into a waiver will,

of course, show that the defendant did not volun-

tarily waive his privilege. The requirement of warn-

ings and waiver of rights is a fundamental with re-

spect to the Fifth Amendment privilege and not sim-

ply a preliminary ritual to existing methods of in-

terrogation.”

Miranda perceived the lawyer’s presence at interroga-

tion, rather than a waiver of that presence, as the best

way to effectuate the Fifth Amendment privilege against

self-incrimination. The ABA Standards reflect this pref-

erence by requiring that counsel be provided as soon as

possible after arrest and by requiring the police to facil-

itate, not frustrate, this process. (ABA Standard 5-5.1)

The actions of the police in this case frustrated the

efforts of counsel to assist Burbine in making a knowing

and intelligent decision regarding his Fifth Amendment

rights. Though Burbine was given standard warnings of

his Miranda rights and waived them on three separate

occasions (Pet. App. 4-6), he was never made aware that

a lawyer had called the police station, indicated she rep-

resented Burbine, and asked to be present if the police

intended to interrogate him.* (Pet. App. 14-15). Because

the police did not inform Burbine of the lawyer’s efforts,°

Burbine did not make a knowing and intelligent waiver of

his Fifth Amendment right to assistance from that coun-

sel during interrogation.

* Two police departments were investigating Burbine but were

working closely together. (Pet. App. 17-18). For this reason, their

collective knowledge of the lawyer’s phone call should be presumed.

United States v. Scalf, 708 F.2d 1540, 1544-45 (10th Cir. 1983)

(collecting authorities) ; Burbine v. Moran (Pet. App. 16).

5 The Court of Appeals concluded that the police frustrated Bur-

bine’s rights deliberately or recklessly. (Pet. App. 16-20). The

Rhode Island Supreme Court concluded that the police conduct may

well have been unintentional. (Pet. App. 64). This Court has noted

in other contexts that constitutional decisions should not hinge on

post hoc determinations of the subjective intentions of the police.

See Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (officer’s sub-

jective intent to have suspect incriminate himself is not determina-

tive of whether “interrogation” occurred); New York v. Quarles,

104 S.Ct. 2626, 2632 n.5 (1984) (collecting authorities). Once it is

shown that the police were apprised that a lawyer was available

to represent the accused, the burden must rest on the police to

establish that their failure to so notify the accused was, as a prac-

tical matter, unavoidable. They did not do that here.

The information denied to Burbine must be considered |

material in evaluating the voluntariness of an uncoun-

seled waiver of his rights to counsel and to silence. It

will often be highly important to the arrested individual

to know not only that he has a theoretical right to have

some lawyer present at an indefinite time in the future

wut that a specific lawyer has already been retained for

him by his family and is attempting to contact him. The

arrested individual then has an opportunity to consider

the identity of the attorney in making his decision.* The

isolated suspect also then knows that the attorney is im-

mediately available, without delay or inconvenience. If he

is told that the attorney has requested that he not be

questioned until the attorney can be present, the suspect

becomes aware of the attorney’s view with regard to an

uncounseled waiver or an uncounseled interrogation. All

of this information would be of substantial importance in

deciding whether to waive the right to counsel or to silence.

Particularly in light of Miranda’s narrow standard for

demonstrating the voluntariness of uncounseled waivers,

this information cannot be dismissed as irrelevant or

immaterial.

The ABA’s view is shared by the clear majority of

courts that have addressed the issue. In State v. Haynes,

288 Or. 59, 602 P.2d 272, 278-79 (1979) (en banc), the

Oregon Supreme Court stated the proposition as follows:

“To pass up an abstract offer to call some unknown

lawyer is very different from refusing to talk with

an identified attorney actually available to provide

® The commentary to Standard 5-7.1 (at 5-70) reflects the ABA’s

concern that abstract offers of counsel made by police are not neces-

sarily effective:

“If the offer of counsel is made by a police officer or prosecutor,

it is less likely to be stated fairly and to be intelligently under-

stood, due to the adversa) relationship between the parties.”

Explicit advice that a lawyer has been retained by the suspect’s

family and wishes to see him could ameliorate this concern.

at least initial assistance and advice, whatever might

be arranged in the long run. A suspect indifferent

to the first offer may well react quite differently to

the second. If the attorney appears on request of

one’s family, that fact may inspire additional con-

fidence. . . . [W]hen law enforcement officers have

failed to admit counsel to a person in custody or to

inform the person of the attorney’s efforts to reach

him, they cannot thereafter rely on defendant’s

“waiver” for the use of his subsequent uncounseled

statements or resulting evidence against him.”

This view of Miranda has been adopted in Maryland,’

Delaware,® Massachusetts,® Pennsylvania,’® Louisiana,"

Oklahoma,” Illinois,“* and Washington."* All of these ju-

risdictions, except Louisiana, relied solely or in part on

the federal Constitution and this Court’s decisions. Only

the Rhode Island courts herein, along with Georgia,’® and

T Lodowski v. State, 302 Md. 691, 490 A.2d 1228, 1243 (1985),

petition for cert. filed, 54 U.S.L.W. 3019 (U.S. June 21, 1985) (No.

85-23).

8 Weber v. State, 457 A.2d 674, 685-86 (Del. 1983).

® Commonwealth v. McKenna, 355 Mass. 310, 244 N.E.2d 560,

566 (1979).

10 Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322, 329

(1977) (plurality opinion).

11 State v. Jackson, 303 So.2d 734, 737 (La. 1974) (police must

honor a lawyer’s request to speak to client as well); State v.

Matthews, 408 So.2d 1274, 1278 (La. 1982).

12 Lewis v. State, 695 P.2d 528, 530-31 (Okla. 1984).

18 People v. Smith, 93 Ill.2d 179, 442 N.E.2d 1325, 1328-29 (1982).

14 State v. Jones, 19 Wash. App. 850, 579 P.2d 71, 73 (1978).

15 Blanks v. State, —— Ga. ——, 330 S.E.2d 575, 579 (1985). In

this case the individual asked his mother to secure counsel for him

when he was arrested.

arguably Missouri,“° and Iowa,’ would find routine

Miranda waivers adequate in this type of case.

The ABA believes several other factors support adop-

tion of the majority view. It is important to remember

that “waiver” in this type of case is more than relinquish-

ment of a right to counsel. The “waiver” is also a repudi-

ation of the lawyer’s directions to the police. Obviously

Burbine was not knowingly countermanding the lawyer’s

instructions, of which he was unaware. Judge Lumbard,

concurring in United States v. Foley, 735 F.2d 45, 50 n.1

(2d Cir. 1984), cert. denied sub nom. Edler v. United

States, 105 S.Ct. 915 (1985), explains this proposition in

terms of the authority of the lawyer to act for the

individual:

“(T]he interrogation of Edler in contravention of

counsel’s specific request did violate the right to

counsel created by the Court in Miranda, “not to

vindicate the constitutional right to counsel as such,

but * * * ‘to guarantee full effectuation of the Fifth

Amendment privilege against self-incrimination * * *’

Johnson v. New Jersey, 384 U.S. 719, 729 (1966).”

Kirby v. Illinois, 406 U.S. 682, 689. This conclusion

presumes that counsel as an agent of the defendant

may assert defendant’s Miranda rights to have coun-

sel present, at least until that assertion is knowingly

and directly repudiated by defendant. However, I

think that presumption is implicit in cases holding

that pre-arraignment interrogation of a defendant

without counsel present, despite counsel’s specific re-

quest to be present, is a violation of defendant’s

Fifth Amendment rights, even when defendant has

16 State v. Beck, 687 S.W.2d 155, 157-58 (Mo. 1985) (en banc)

(court noted that defendant asked his mother to secure counsel for

him shortly before he was taken into custody).

17 State v. Blanford, 306 N.W.2d 93 (Iowa 1981) (police were

unaware that lawyer had called at request of defendant’s brother

and that lawyer represented defendant in a pending dissolution

action).

himself knowingly waived his right to counsel... .”

(citations omit |) (emphasis added)

Until the defendant has been informed of counsel’s in-

struction, he cannot knowingly repudiate it.

The Miranda Court, relying on Escobedo v. Illinois,

378 U.S. 478 (1964) and People v. Donovan, 13 N.Y.2d

148, 243 N.Y.S.2d 841, 193 N.E.2d 628 (1963) (Fuld

J.), considered any interference with retained counsel’s

attempt to offer counsel a per se violation of the Sixth

Amendment. 384 U.S. 465, n.35. The Miranda reference

to Donovan is instructive because in that case, as here, a

lawyer retained by the suspect’s family was denied access

to the suspect. Judge Fuld, writing for the court, stated

(193 N.E.2d at 630) (quoting People v. Waterman, 9

N.Y.2d 561, 175 N.E.2d 445 (1961) ):

“(Slo here we condemn continued incommunicado

interrogation of an accused after he or the lawyer

retained by him or his family has requested that

they be allowed to confer together... . [I]f such a

request is refused and a confession thereafter ob-

tained, its subsequent use not only denies the accused

the effective assistance of counsel but also. . . ‘con-

travenes the basic dictates of fairness in conduct of

criminal causes and the fundamental rights of per-

sons charged with crime.’” (citations omitted) (em-

phasis added).

We recognize that later decisions generally have re-

stricted the Sixth Amendment right to assistance of coun-

sel to events occurring after the commencement of judi-

cial proceedings. United States v. Gouveia, 104 S.Ct. 2292,

2298 and n.5 (1984). Nevertheless, it is clear that the

Miranda Court viewed police interference with communi-

cations between the suspect and counsel as unconstitu-

tional. While subsequent decisions have clarified that it

is the Fifth Amendment, rather than the Sixth, that

limits police conduct at this stage of the criminal process,

police interference with the attorney-client relationship

remains unfair and should be proscribed under Fifth

Amendment “waiver” analysis.

For these several reasons, the ABA urges the Court to

hold that a suspect cannot validly waive his Fifth Amend-

ment rights where the police have failed to disclose that

a specific lawyer, retained by persons familiar to the sus-

pect,'* has offered to provide representation. The rule

sought by the ABA would be easy to administer, ethical

and fair. The most often cited complaint about allowing

counsel retained by a third party to intercede on behalf

of a client who is under arrest is that such a rule places

too much importance on the fortuity of finding an avail-

able lawyer. See Kamisar, Brewer v. Williams, Massiah

and Miranda: What is “Interrogation”? When does it

Matter? 67 Geo. L.J. 1, 95 (1978). This fortuity is

inherent in a system which permits—indeed, encourages—

individuals to retain their own counsel.

It is no doubt true that requiring the police to advise a

suspect of the lawyer’s availability carries with it an ele-

18 The government seeks to characterize the lawyer, summoned

not by Burbine but by his sister, as a volunteer lawyer with no

legitimate power to represent him. The majority of cases that

address this issue, most of which are summarized earlier in this brief

at note 2, implicitly recognize the authority of a lawyer requested

by a family member to act on behalf of a person held in custody.

See Lodowski v. State, 302 Md. 691, 490 A.2d 1228 (1985), petition

for cert. filed, 54 U.S.L.W. 3019 (U.S. June 21, 1985) (No. 85-23) ;

Elfadl v. State, 61 Md. App. 132, 485 A.2d 275 (1985), petition for

cert, filed, 54 U.S.L.W. 3019 (U.S. June 21, 1985) (No. 85-24);

Weber v. State, 457 A.2d 674 (Del. 1983) ; State v. Haynes, 288 Or.

59, 602 P.2d 272 (1979), cert. denied, 446 U.S. 945 (1980); State

v. Jones, 19 Wash. App. 850, 579 P.2d 71 (1978); Commonwealth

v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977); State v. Jackson,

303 So.2d 734 (La. 1974) ; Davis v. State, 287 So.2d 399 (Fla. App.

1974) ; Commonwealth v. McKenna, 355 Mass. 310, 244 N.E.2d 560

(1979) ; People v. Donovan, 13 N.Y.2d 148, 248 N.Y.S.2d 841, 193

N.E.2d 628 (1963). But see Blanks v. State, —— Ga. ——, 330

S.E.2d 575 (1985); State v. Beck, 687 S.W.2d 155 (Mo. 1985)

(en banc).

ment of fortuity. Whether family or friends are aware

of the arrest; whether they know a lawyer already;

whether the arrest occurs at a time a lawyer is available,

are all factors which may determine whether representa-

tion can be secured before custodial interrogation takes

place. The fortuity does not suggest any invidious dis-

crimination against rich or poor. The lawyer will as

likely be a public defender aiding an indigent family as

a private lawyer interceding on behalf of a neighbor or

affluent client.

Moreover, a constitutional right is no less a right sim-

ply because not everyone will benefit from it to equal

degree. Thus, though the Sixth Amendment right to ap-

pointment of counsel does not attach for all misdemeanor

trials, Scott v. Illinois, 440 U.S. 367 (1979), this Court

has never suggested that the resulting inequality should

be remedied by denying the right to counsel to everyone.

The dire forecast that volunteer or interloping attor-

neys may disrupt police operations by seeking to represent

“anyone” in custody is not well-founded. A lawyer re-

tained by an individual’s family is neither an interloper

nor a volunteer. In the ABA’s view, the volunteer attor-

ney’s offer is effectively conveyed by routine Miranda

warnings and would require no special advisement to peo-

ple in custody. Nor will the rule sought by the ABA en-

courage solicitation to obtain clients at the police station.

Direct solicitation of clients would be as unethical in the

jailhouse as it would be in a hospital under the ABA

Model Rules of Professional Conduct 7.3 or the ABA

Model Code of Professional Responsibility DR 2-103(A),

DR 2-104(A).

In the final analysis, the rule the ABA seeks is a recog-

nition that the lawyer plays a vital role at interrogation

that cannot be frustrated by the police. This reaffirma-

tion of Miranda is critical to the effectuation of the ABA

Standards.

CONCLUSION

For the foregoing reasons, the decision of the United

States Court of Appeals for the First Circuit should be

affirmed.

Respectfully submitted,