Amicus Curiae Brief — Moran v. Burbine

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a ame | Supreme Court, U.S.

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IN THE AUG 26 i965

Supreme Court of the United States sev e

——a

OCTOBER TERM, 1985

—_<-

JOHN MORAN,

Petitioner,

—VvsS—

BRIAN K. BURBINE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, AND THE AMERICAN CIVIL

LIBERTIES UNION, AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

JACK D. NOVIK KIM R. FAWCETT (P 25533)

American Civil Liberties Assistant Appellate Defender

Union Foundation State Appellate Defender Office

132 W. 43rd Street Third Floor, North Tower

New York, New York 10036 1200 Sixth Avenue

(212) 944-9800 Detroit, Michigan 48226

JOHN A. MACFADYEN (313) 256-2814

Rhode Island Civil JAMES R. NEUHARD

Liberties Union Counsel of Record

91 Friendship Street National Legal Aid and

Providence, R.I. 02983 Defender Association

(401) 521-5130 1625 K Street N.W.

8th Floor

Washington, D.C. 20006

(202) 452-0620

Counsel for Amici Curiae

” BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF CONTENTS. .cccccccccccccccccccvecl

TABLE OF AUTHORITIES... ..ccceeeeveecvcvcvilil

INTEREST OF AMICT.cccccrcccccccsccsvesceeel

STATEMENT OF THE CASE... cece ccccsescsceeed

SUMMARY OF ARGUMENT. .cccccccccccceesseseed

ARGUMENT... cccccccccccccscvesccccccsesese lf

I. FULL, FAIR, AND REASONABLE

OPPORTUNITY TO EXCERCISE THE

FIFTH AMENDMENT RIGHT TO

COUNSEL REQUIRES THAT THE

ARRESTEE BE INFORMED THAT AN

IDENTIFIABLE ATTORNEY IS

PRESENTLY AVAILABLE AND

OFFERING ASSISTANCE DURING

CUSTODIALINTERROGATION.. ce eeeeeeee el

A. An Arrestee’s Opportunity To

Excercise the Right To Have

Counsel Present During

Custodial Interrogation Must

Be Attorded Continuously, And

A Fair Opportunity Is Not

Attorded Where The Arrestee

Is Held Incom municado And Is

Not Intormed That An

Identifiable Attorney Is

Actually Available and Seeking

To Be Present For Any

TtOETOYAtION. co cccccccccccccccecees au

B. A Balanced Approach To

Miranda Requires That Police

Administration Ot The Advice

Of Rights Be Counter-Balanced

—

By Counsel's Advice Where

Counsel Is Available And Seeks

To Be Present During A

Custodial Interrogation. .....eeecceeeee24

C. An Attorney Representing An

Arrestee In An Existing

Attorney-Client Relationship

Has The Authority,

Constitutionally to Assert The

Right To Presence At A

Custodial Police Interrogation

For Any Charge, Regardless Of

The Arrestee'’s Failure To

Request Counmal. .ccccccceccccccccccead

I, THE RIGHT TO THE ASSISTANCE OF

PRIVATE COUNSEL, OBTAINED BY OR

ON BEHALF OF AN ARRESTEE HELD IN

POLICE CUSTODY, REQUIRES THAT

COUNSEL'S REQUEST TO CONSULT

WITH THE ARRESTEE-CLIENT BE

GRANTED PROMPTLY, AND THAT

COUNSEL'S INQUIRIES CONCERNING

THE ARRESTEE'S STATUS BE

ANSWERED HONESTLY... cc cceececcccees4l

CONC LUG ION. oc ccccscceeeeeeeeese ee

ii

ee meee

TABLE OF AUTHORITIES

Cases Page

Blanks v. State,

Deas me SES (G8. 1965). -<ccccccceccel®

Brewer v. Williams, 430 U.S. 387

eee tk is ececceecccc co 96

Calitornia v. Prysock, 453 U.S. 355

TTT a ee B

Chandler v. Fretag, 348 U.S. 3 (1954)...43

Cicenia v. La Gay, 357 U.S. 504

DRtn hh 6666666668680 ce cccccce ccc ce 044, 49

50

Commonwealth v. Hilliard, 471 Pa.

OU a F

Commcnwealth v. McKenna, 355 Mass.

313 ee eng go cee 16018

Commonwealth v. Sherman 389 Mass.

re |

Crooker v. Calitornia, 357 U.S. 433

(1 rrr rr er eee FL

Darwin v. Connecticut, 391 U.S. 346

96 Tj] UP Pe ee eee we eeeeeecececoceocooocecoe ds

Douglas v. California, 372 U.S. 353

DERE MOMESBESOCOS COC OCOSCOC CeCe CCC Ce CO

Edwards v. Arizona, 451 U.S. 477

Dt eee Pee he ee eegeceesesoccoceocco seed

iii

Elfadi v. State, 61 Md. App. 132

(Md. Ct. Spec. App.) cert. granted,

U.S. SBS 6 666666 060666606 66 0ee oe

Escobedo v. Illinois, 378 U.S.

478 SEweeedceseeeeeeuceocececeses eats

48,49,57

Gagnon v. Scarpelli, 411 U.S. 788

CEP Spccecoeseesooeecoeccooceesecceccc ec 045e9S8

Gideon v. Wainwright, 372 U.S. 335

PT > © 666 66 6646S 666K 66 bode Re 6 Oooh enon

Griffin v. Illinois, 35l U.S. 12

[ Pa +6666 66a wae 6606 60 hbbwenien%ee ues

Hancock v. White, 378 F.2d 479

(list Cif. eS a ee

Johnson v. New Jersey, 384 U.S. 719

60 Pe reresere re eee errr ere

Johnson v. Zerbst, 304 U.S. 458

f Res 6% 6 6 060086 6666000 606 eee 00019-4355

Kirby v. Illinos, 406 U.S. 682

CSU Vare cc oeeoeeoseoesoeoseceecececes + 46008

57

Lewis v. State, 695 P.2d 528 (Okla.

i Crim. App. 0) re See ee

Lodowski v. State, 302 Md. App. 691

(Md. Ct. Spec. App.), cert. granted,

U.S. [Rik cene e6eeesaabeeeehoeuasenn

Massiah v. United States,

377 Dee 201 Yo | |e

Mathies v. United States, 374 F.2d

312 tmeGe Cile 0 mre.

iv

McLeod v. Ohio, 381 U.S. 356

Teh 6666666600 6666660406660 0860000000088

Michigan v. Mosley 423 U.S. 96

T PITUES 6666666666660 6068060806066006666660588

Miranda v. Arizona, 384 U.S. 436

CO PPP rrTrTeTeyyTVTTTTTT TTT TTT.

North Carolina v. Butler, 441 U.S.

369 REST em yn Te

Ohio v. Chase, 55 Ohio 2d 237

2 Se | errr eT Te eee rT eT es |

People v. Cavanaugh, 246 Mich. 680

[ Rt 6 666.066 66660660066000060000 06068080"

50,52

People v. Donovan, 13 N.Y.2d 148

T EWES lc 6606006866 coevecoeececeosoeeecs 86990

People v. Smith, 93 I1ll.2d 179

(1982), cert, denied,

461 i FR 937 0 iS Seema |

Powell v. Alabama, 287 U.S. 45

(T9352) cece cece ecseeeecceeeeeeeccc eee eed

Rhode Island v. Innis, 466 U.S. 291

T Ro 65.6 66666 0505660000666 6 CDH CCC CCR CED

ROSS V. Motfit, 417 U.S. 600

Otrl PPvPrrrerTTrrrrrerees eer |.

Scott v. Illinois, 440 U.S. 367

Cia, ) FRPPPPPPTTTTTTTTTIT TTT TT ree

State v. Beck, 687 S.W.2d 155

(Mo BUT 6 6666666666660 Coe Os eee SCOC OO OSES

State v. Haynes, 288 Or. 59 (1979)

cert, denied, 446 U.S. 945 (1980)....15,18

Smith v. Illinois, 469 U.S.

ITE Eran p opp ere CD rE,

State v. Jackson, 303 So.2d

734 (La. DT ititcppedbsnseoneencesoveedess ae

State v. Johns, 185 Neb. 590 (1970).....19

State v. Jones, 19 Wash App. 850

(Wash. Ge App. ees rrr TrrTyrTrTrrry:? . |

State v. Matthews, 408 So.2d

1274 (La. Bes 66 6660666066068 60000¢0006680

State v. Smith, 294 N.C. 365

fC # PH ee

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

(197 Utne bees ee ke 66060000 646000600000 08

United States v Gouveia,

U.S. Petteé6sse000 680 e0 see oe 68 SS.8F

United States v. Hinckley,

672 F.2d 115 (D.C. Cir. EVeadcccoceccesesone

United States v. Wade,

U. . 966666006 000600060808 0"

Weber v. State, 457 A.2d 674

I a al nn a a ak ee i ee ok ne

vi

OTHER AUTHORITIES

Beaney, The Right to Counsel In

American Courts, 3 A.L.R.2d 21

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vii

fe Pt

7

No. 84-1485

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JOHN MORAN,

Petitioner,

-vs-

BRIAN K. BURBINE,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

Brief of The Nationa: Legal Aid And

Defender Association, and The American

Civil Liberties Union, As Amici Curiae

In Support of Respondent

INTEREST OF AMICI CURIAE

The National Legal Aid and Defender

Association (NLADA) is a private, non-profit,

national membership organization headquartered in

Washington, D.C. whose purpose is to ensure the

availability of quality legal services in civil and

criminal cases to all persons unable to retain

counsel. Specifically, NLADA represents

approximately 1,753 programs engaged in providing

representation to indigents in civil cases, and 586

defender offices engaged in providing

representation to indigents arrested on criminal

offenses. The membership of NLADA, therefore,

comprises most public defender offices and legal

service agencies around the nation, as well as

assigned counsel plans and private practitioners.

The American Civil Liberties Union (ACLU)

is a nationwide, non-partisan organization of over

250,000 members dedicated to preserving and

defending the principles embodied in the Bill of

Rights. The Rhode Island Civil Liberties Union is

the Rhode Island affiliate of the ACLU. The

ACLU and its affiliates are, in particular,

committed to preserving the right against

self-incrimination and the right to counsel

embodied in the Fifth, Sixth and Fourteenth

Amendments.

Such rights can only be guaranteed by the

implementation of procedures designed to assure

that criminal detainees are fully informed of their

rights, that they are free to exercise those rights

and that criminal interrogations are not

unconstitutionally coercive. The ACLU has been

involved in many cases before this Court, as well

as in courts throughout the country, in which the

proper scope and application of such procedures

have been at issue.

Amici are vitally interested in ensuring that

indigent criminal defendants are guaranteed their

right against self-incrimination during custodial

police interrogation, that counsel has access to

suspects held in police custody, that suspects are

informed that counsel is present and/or desires to

talk with them, and finally, that the police

accurately inform counsel of the status of

interrogation of a suspect counsel represents.

In this case the Court will be deciding

whether a waiver of the right to counsel can be

knowingly and intelligently made if the arrestee is

not informed by police that the attorney who

assertedly represents him offered to be present

for questioning but was not present because she

was misinformed that there would be no

questioning at that time. Amici respectfully

request this Court to consider this brief on these

significant public questions.

STATEMENT OF THE CASE

On the afternoon of June 29, 1977,

Respondent Burbine and two others were arrested

by the Cranston, Rhode Island, police and taken

into custody in connection «ith a breaking and

entering. Information gained from questioning the

other two men, together with other information,

led a Cranston detective to suspect Respondent's

involvement in a homicide which had occurred in

Providence, Rhode Island. Respondent Burbine

was given Miranda warnings after he had told the

detective that his nickname was "Butch". Then

Respondent Burbine refused to sign a waiver of

rights form and refused to say anything further.

Burbine v Moran, 753 F2d 178, 179-180 (CA 1,

1985).

At about 6:00 p.m. the Cranston detective

called the Providence police and informed them

that the other two arrestees had made statements

implicating Respondent Burbine in the Providence

homicide. At about 7:00 p.m. three Providence

officers arrived at the Cranston police station.

They first interviewed the other two arrestees

and later, at sbout 9:00 p.m., talked with

Burbine.

After being advised of his rights, Respondent

was asked about the homicide and, appearing

"fidgety", denied involvement. He was placed in

a different room and about ten minutes later the

Cranston detective went to that room because he

heard repeated banging on the door. At that

point Respondent Burbine told the detective that

he was "disgusted", "sorry", and wanted to make

a statement. The Providence officers were

summoned and met with Respondent in a main

office to take a statement. Miranda rights were

administered and Respondent Burbine indicated

that he understood what his rights were. At

about 9:30 p.m. he signed a waiver of rights

form. Id., 180. He was later described as

having been "shaky, in tears," but as having

spoken clearly. A fifty-minute interrogation

produced a typed inculpatory statement which

Respondent Burbine signed at about 10:20 p.m.

Sometime between about 10:45 p.m. and

11:00 p.m. Respondent Burbine indicated that he

had omitted some information and he was

returned to the main room, read Miranda rights,

and gave a second statement, which he signed at

about 11:20 p.m. About noon the next day, June

30, 1977, at Providence headquarters, Respondent

Burbine gave a third inculpatory statement.

inne

While he was doing so, a Providence officer

called the public defender office to request the

presence of an attorney for an identification

lineup. Assistant Public Defender Richard

' Casparian later arrived and assisted Respondent

during the lineup. Id., 181.

On the evening of June 29, 1977 Respondent

Burbine's sister called Casparian at his office, as

he was representing Respondent on an unrelated

ease. This call occurred at about 7:45 p.m.

Respondent Burbine had missed an appointment

with Casparian that same afternoon. Casparian

was not available, but another person took the

call, during which Respondent's sister requested

legal assistance for him on his current arrest.

Assistant Public Defender Allegra Munson, a

colleague of Casparian, was contacted and

informed of the situation. Id., 180.

At about 8:15 p.m. Ms. Munson called the

Cranston police station and asked for the

detective division. A male voice responded,

saying "Detectives". Ms. Munson identified herself

and ascertained that Brian Burbine was in

custody; she explained that Mr. Casparian

represented Respondent but was not available, and

that she would act as Respondent's legal counsel

in the event that the police intended to place

him in a lineup or question him. The

unidentified person told Ms. Munson that the

police would not be questioning Respondent or

putting him in a lineup and that they were

through with him for the night. Ms. Munson was

not informed that the Providence police were

there or that Respondent was a suspect in the

Providence homicide. Id., 180.

At a subsequent hearing, all of the officers

involved denied receiving or knowing about Ms.

Munson's call, and it has never been determined

who spoke with Ms. Munson. Respondent Burbine

was never told by the police of Ms. Munson's

call, her offer of assistance, or the information

given her. Id, 180.

The United States Court of Appeals for the

First Circuit suppressed Respondent's statements

and granted a new trial. Id., 187-188.

SUMMARY OF ARGUMENT

A full, fair, and reasonable opportunity to

exercise the Fifth Amendment right to counsel

requires that an arrestee be informed that an

identifiable attorney is presently available and

offering assistance during custodial interrogation.

It is only when the arrestee is so informed that

he or she has the material facts to knowingly

and intelligently decide whether to forego that

offer of assistance. Where an individual has not

requested counsel and has chosen instead to make

his own decisions regarding his conversations with

the authorities, he should not be deprived even

temporarily of any information relevant to that

decision. To say that there is no right to

counsel until there is a request, and

simultaneously to withhold from the arrestee

information which materially bears on the

likelihood that such a request will be forthcoming,

is to manipulate the arrestee's knowledge of the

realities of the situation in favor of enforcing

any initial waiver of counsel's presence. The

failure to advise Respondent that an attorney was

presently available and offering to be present

during custodial interrogation renders any waiver

of counsel invalid.

An attorney representing the arrestee in an

existing attorney-client relationship has the

eonstitutional authority to assert the right to

presence at a custodial police interrogiation for

any charge, regardless of the arrestee's failure to

request counsel. The Fifth Amendment right to

counsel becomes operational either by a request

for counsel by the arrestee, or by the assertion

of an attorney-client relationship by a presently

available attorney privately obtained by family or

friends. Miranda does not authorize the police to

exclude existing counsel from access to the

10.

arrestee, over counsel's request, until such time

as the arrestee actually requests counsel's

presence. The traditional role of counsel is to

confer with his or her in-custody client. A

public defender who is appointed on one case

need not be appointed for trial on a new case to

consult with her arrested client and be present

for custodial interrogation in the new case.

The right to the assistance of privately

obtained counsel, obtained on behalf of an

arrestee, requires that counsel's request to consult

with the arrestee-client be granted promptly and

that counsel's inquiries concerning the arrestee's

status be answered honestly. The Sixth

Amendment right to privately obtained counsel,

unlike the right to court appointed counsel,

originates at least when counsel undertakes an

attorney-client relationship and, asserting that

relationship, requests access to a client held in

custody. Respondent Burbine's own lawyer in the

case at bar happened to be a public defender

11.

duly appointed on an earlier case. But having

undertaken to act on Respondent's behalf at the

request of his sister, and in the good faith

anticipation of a future appointment in the

matter at hand, that public defender was

operating as Respondent's own lawyer, privately

obtained on his behalf. The police officials in

the case at bar thwarted that attorney-client

relationship by misleading counsel about

Respondent's interrogation status, and by failing to

inform Respondent of counsel's inquiry and offer

to be present for a lineup or interrogation. The

police, having custody of one arrested for a

crime, may not deny an attorney employed on

behalf of the arrestee the right to see and advise

that attorney's client.

The right to privately obtained counsel

should attach, at least, when a person is arrested

and held in custody; it should become operational

when invoked by counsel. There is no significant

state interest which justifies excluding counsel

12.

from such consultation until the arrestee

specifically requests counsel's presence pursuant to

Miranda warnings. Counsel needs an honest

response from the police concerning the status of

the arrestee, including location, interrogation

status, and the procedures for visiting. The

police violate the right to counsel by, as here,

misleading counsel by dishonest responses to

counsel's inquiries. Public confidence in the

criminal justice system will be lost if the

practices which occurred in this case are upheld.

The decision of the United States Court of

Appeals for the First Circuit should be affirmed.

13.

ARGUMENT

L, A FULL, FAIR, AND

REASONABLE OPPORTUNITY TO

EXERCISE THE FIFTH

AMENDMENT RIGHT TO COUNSEL

REQUIRES THAT THE ARRESTEE

BE INFORMED THAT AN

IDENTIFIABLE ATTORNEY IS

PRESENTLY AVAILABLE AND

OFFERING ASSISTANCE DURING

CUSTODIAL INTERROGATION,

Attorney Allegra Munson was acting as

Respondent's legal counsel, on request of his sister,

when she called the Cranston police station on the

evening of June 29, 1977. There was an existing

attorney-client relationship between Respondent and

Ms. Munson's public defender office, albeit on an

unrelated case. The unidentified person who

answered the call misled Ms. Munson about the

interrogiation status of Respondent Burbine, and

Respondent was not informed of her call, her offer

of assistance, or the information that was given her.

Although Respondent had not requested the presence

of an attorney, he had the continuing right to do

so. His decision not to do so cannot be deemed a

14,

knowing and intelligent decision unless he was

informed by the police that his own lawyer, Ms.

Munson, had called and had offered to be present

for any questioning, and had been told that the

police were through with him for the night.

As the United States Court of Appeals for the

First Circuit observed: "To pass up an abstract offer

to call some unknown lawyer is very different from

refusing to talk with an identified attorney actually

available . . ." Burbine v Moran, 753 F2d 178, 185

(CA 1 1985), quoting from State v Haynes, 288 Or

59, 72; 602 P2d 272, 278 (1979), cert. denied, 446

US 945 (1980). It is only when the arrestee is

informed that an identifiable attorney is presently

available and offering assistance that the arrestee

has the material facts to knowingly decide whether

to forego that offer of assistance. The failure to

timely inform the arrestee of specific counsel's

availability and offer of assistance enforces the

isolation of the arrestee and furthers his or her

dependence on the police, while simultaneously

15.

— aca cerca a ait,

conferring on the police the power to regulate and

determine what information the arrestee may

receive. See People v Smith, 93 Ill 2d 179; 66 Ill

Dec 412; 442 NE2d 1325, 1330 (1982), cert. denied,

461 US 937 (1983).

If there is no duty on the part of the police

to inform the arrestee of counsel's present

availability, then the police are effectively denying

the arrestee a fuil, fair and reasonable oppcrtunity

to knowingly exercise the right to have counsel

present during the interrogation. See Commonwealth

v McKenna, 355 Mass 313; 244 NE2d 560 (1969).

Police officials who forestall counsel's access to the

arrestee and who refuse to inform the arrestee of

counsel's present availability, pending an actual

request for counsel, are restricting the opportunity

to consult with counsel, and usually do so to

facilitate a counselless interrogation. To argue that

there is no right to counsel until there is a request,

and simultaneously to withhold from the arrestee

information that materially bears on the likelihood

that such a request will be forthcoming, is to

manipulate the arrestee's knowledge of the realities

of the situation in favor of enforcing any initial

waiver of counsel's presence. The police are able,

thereby, to freeze the flow of events in one

direction and to create artificial "disinformation"

that may predicate, as here, a decision to speak to

them unaided by counsel.

In Michigan v Mosley, 423 US 96 (1975),

Justice White, concurring, opined that "where the

individual has not requested counsel and has chosen

instead to make his own decisions regarding his

conversations with the authorities, he should not be

deprived even temporarily of any information

relevant to the decision." Id., 423 US 109, n. 1.

The information that an identifiable attorney is

available and offering assistance for purposes of

custodial interrogation is relevan: information which

the arrestee needs if the continuing opportunity to

invoke the Fifth Amendment right to counsel is to

be scrupulously honored.

17.

Most states which have considered this problem

have refused to afford the police the means to

manipulate the material information available to the

arrestee. See Commonwealth v Sherman, 389 Mass

287; 450 NE2d 566 (1983); State v Haynes, supra;

People v Smith, supra; Commonwealth v McKenna,

supra; State v Matthews, 408 So 2d 1274 (La 1982);

State v Jackson, 303 So 2d 734 (La 1974); Weber v

State, 457 A2d 6.4 (Del 1983); Commonwealth v

Hilliard, 471 Pa 318; 370 A2d 322 (Pa 1977); Lewis

v State, 695 P2d 528 (Okla Ct Crim App 1985);

Dunn v State, Tex Cr App ; SW2d __

(1985);!/ State v Jones, 19 Wash App 850; 578 P2d

71 (Wash Ct App 1977). Lodowski v State, 302 Md

App 691; 490 A2d 1228 (Md Ct Spee App 1985),

cert. docketed Maryland v Lowdowski, No. 85-23, 37

Cr L 4115, July 31, 1985; Elfadl v State, 61 Md

App 132; 485 A2d 275 (Md Ct Spec App 1985),

1/ Opinion not released for publication in

permanent law reports - it is subject to

revision or withdrawal. Westlaw, TX-CS,

8/19/85.

18,

cert. docketed, Maryland v Elfadl, No. 85-24, 37 Cr

L 4115, July 31, 1985. See also, People v

Cavanaugh, 246 Mich 680, 688; 225 NW 501 (1929).

Other states have declined to require the

police to inform the arrestee that counsel is

available. State v Burbine, 451 A2d 22 (RI 1982);

State v Johns, 185 Neb 590; 177 NW2d 580 (1970);

State v Smith, 294 NC 365; 241 SE2d 674 (1978);

Ohio v Chase, 55 Ohio St 2d 237; 378 NW2d 1064

(1978); Blanks v State, 330 SE2d 575 (Ga, 1985);

State v Beck, 687 SW2d 155 (Mo 1985)en banc).

The failure to inform Respondent, or any

similarly situated arrestee, that an attorney is

presently available and offering to be present during

custodial interrogation renders the advice of rights

inadequate and ineffective to support a valid waiver.

North Carolina v Butler, 441 US 369 (1979); Johnson

v Zerbst, 304 US 458 (1938)2/

2/ It is legitimate to require the police to

inguire of an arrestee, who has not

requested counsel's presence, whether he

(Footnote Continued on Next Page)

19.

A. AN ARRESTEE'S OPPORTUNITY

TO EXERCISE THE RIGHT TO

HAVE COUNSEL PRESENT

DURING CUSTODIAL

INTERROGATION MUST BE

AFFORDED CONTINUOUSLY, AND

A FAIR OPPORTUNITY IS NOT

AFFORDED WHERE THE

ARRESTEE IS HELD

INCOMMUNICADO AND IS NOT

INFORMED THAT AN

IDENTIFIABLE ATTORNEY IS

ACTUALLY AVAILABLE AND

SEEKING TO BE PRESENT FOR

ANY INTERROGATION,

The Fifth Amendment right to counsel is one

of the "concrete constitutional guidelines" for law

enforcement agencies which this Court recognized in

Miranda v Arizona, 384 US 436 (1966). These

guidelines were deemed a necessary procedural

support for the privilege against self-incrimination as

(Footnote Continued From Previous Page)

wishes to change his mind and request

counsel once counsel has become available

and offered assistance. See Edwards v

Arizona, 451 US 477 (1981), Powell, J.

joined by Rehnquist, J., concurring in

result, Id., 451 US 490, to the effect that

police legitimately may inquire whether a

suspect has changed his mind about

speaking to them without an attorney.

20.

applied to the custodial police interrogation setting.

Id., 384 US 441.

Viewing the right to counsel as one of the

proper limitations upon custodial police interrogation,

this Court determined that it is not merely a right

to consult with counsel prior to, but also a right to

have counsel present during, custodial interrogation.

Id., 384 US 447, 470. Like all of the Miranda

guarantees, the opportunity to exercise the right to

have counsel present must be continuously afforded

the arrestee throughout the interrogation. Id., 384

US 479. Although warnings to the arrestee about

the right to counsel's presence, and the opportunity

to request counsel's presence, were deemed minimal

safeguards toward assuring the constitutional

objective - to permit a full opportunity to exercise

the privilege against self-incrimination in a

police-dominated atmosphere - a warning and an

opportunity to request counsel were but one set of

alternatives designed to achieve that objective.

Id., 384 US 467.

21.

In Miranda, the Court did not erect limitations

on the opportunity to exercise the privilege, rather,

the Court attempted to off-set, and limit, the

compelling pressures which inhere in the

incommunicado status of the arrestee during the

inquisitory process of custodial police interrogation.

It is anomalous, therefore, for Petitioner to request

this Court to turn the minimal safeguards of

Miranda into a “constitutional straightjacket" to

defeat communication between the in-custody

arrestee and counsel attempting to intervene on his

or her behalf. Yet, Petitioner has asked this Court

to imprison the arrestee within his or her rights and

to deny counsel's access to the arrestee (or notice

to the arrestee of counsel's availability) in all save

those situations where the arrestee expressly

requests counsel.?/ Petitioner thus argues, in

effect, that Miranda protects, provides for, and

prolongs the very police-dominated, isolated,

3/ See Petitioner's brief, at 16.

incommunicado status of the arrestee that this

Court avowedly tried to restrict. Miranda erected

limitations on custodial interrogation, not on the full

opportunity to exercise the privilege against self-

incrimination. */

The arrestee must be accorded a full, fair, and

reasonable opportunity to exercise the Fifth

Amendment right to counsel. There can be no full,

fair and reasonable opportunity to have counsel

present during custodial interregation where law

enforcement officials actively block information that

the arrestee's own lawyer, including one obtained by

family or friends, is present, or readily available,

and prepared to offer a guiding hand, then and

there, as needed, if needed. Nor can the

opportunity to have counsel present be fully, fairly,

or reasonably accorded where law enforcement

4/ See Mathies v United States, 374 oy 312,

316, n. 3 (DC Cir. 1967), Burger, J., [After

Miranda, preindictment interviews are to be

conducted "only after counsel has been

given the opportunity to be present.")

23.

officials resist efforts by counsel to be present,

whether they overtly deny counsel access to his or

her client, or covertly disarm counsel's vigilence by

deception, trickery or delay. A genuine and present

opportunity to confer with an attorney who asserts

a representative capacity and a present availability

is a far greater protection for the in-custody

arrestee then the minimal safeguards of a warning

and an opportunity to request that counsel

eventually be obtained. The very pressures inherent

in the custodial interrogation setting may create a

sense of urgency, often yielded to by the arrestee,

which would not otherwise prevail if identifiable

counsel were known to be a short time and distance

away.

B. A BALANCED APPROACH TO

MIRANDA REQUIRES THAT

POLICE ADMINISTRATION OF THE

ADVICE OF RIGHTS BE

COUNTER-BALANCED BY

COUNSEL'S ADVICE WHERE

COUNSEL IS AVAILABLE AND

SEEKS TO BE PRESENT DURING

A CUSTODIAL INTERROGATION,

The warnings to the in-custody arrestee

24.

required by Miranda are susceptible to police

manipulation through the device of extra-Miranda

explanations of the value and meaning of those

rights, and the relative disadvantages to the arrestee

should he or she exercise those rights. This

manipulation was recognized as a possible

interrogation technique by Miranda itself. See, e.g.,

384 US 454-455. The police may state the Miranda

warnings and then elaborate upon them. See, e.g.,

Smith v Illinois, 469 US __ (1984). Although there

is no claim that such an undercutting explanation

occurred in the case at bar, the possibility of police

elaboration upon the value of the rights available to

the arrestee threatens the very foundation of the

Miranda decision. The unfairness of a rule that

imposes no duty on the police to inform the

arrestee that an identifiable attorney is presently

available for the interrogation is evident; unless

assertedly available counsel can counter-balance

police denigration of the Miranda rights, the

arrestee may be misled about the seriousness of the

25.

situation and the value of those rights. In Michigan

v Jackson, cert. grnt'd, May 28, 1985, No. 84-1531,

US __; 37 Cr L 4069 (1985) the police did

elaborate on the value of the right to counsel even

though they also gave the requisite warnings.°/

Where counsel is available to the arrestee, the very

3/ The brief for Respondent in Michigan v

Jackson provides the following quotation

from that record:

"SGT. GARRISON: Now I think you

need a brick to hit you against a

wall to realize that you're in

serious trouble here and that the

only way that you have any hope

is by us. I don't know what your

gonna think, now if you want an

attorney, I'll tell you what an

attorney is gonna tell ya, an

attorney is gonna tell ya don't talk

to the police. I can tell you that

right now. Don't talk to the

police. But, the attorney doesn't

go to jail, does he?

"SGT. HOFF: You know what the

attorney does when you say that,

the attorney knows that that's

going to get a trial, even if he's

appointed he gets paid by how

much trial days." (JA 157-158).

See Brief of Respondent Robert Bernard

Jackson, No. 84-1531, Statement of

Facts, at 7.

26.

fact of counsel's efforts to contact the arrestee will

convey to him or her, if so informed, that an

attorney deems the situation sufficiently serious to

require the presence of counsel and that the

arrestee may have underestimated the need and

value of exercising the right to counsel. The

arrestee is then aware that there is a check on the

police officer's characterization of the value of

exercising those rights. The offer of a second

opinion by a professional counselor will cause the

arrestee to deliberate on his or her decision to

waive or exercise the right to remain silent and the

right to counsel. Such a deliberate choice is the

honorable goal this Court sought in Miranda:

27.

"(T]...the right to have counsel

present at the interrogation is

indispensable to the protection of

the Fifth Amendment privilege

under the system we deiincate

today. Our aim is to assure that

the individual's right to choose

between silence and speech remains

unfettered throughout the

interrogation process. A

onece-stated warning, delivered by

those who will conduct the

interrogation, cannot itself suffice

to that end among those who most

require knowledge of their rights.

Id., 384 US 469-470

Any waiver of the right to have counsel

present during custodial police interrogation must be

deemed invalid where the arrestee is not informed

that an identifiable attorney is present, or readily

available, to assist him or her. Police deceit,

trickery or deception which disarms the vigilance of

a particular attorney, such as occurred in the case

at bar (the attorney was informed that the police

were not going to question Respondent further that

night) is an important factor as well. Absent the

misleading information to counsel, she would have

appeared at the stationhouse, or have insisted on

speaking to Respondent over the telephone before

her departure. The police could, under the rule

espoused by Petitioner, simply refuse to inform the

arrestee about counsel's call or presence and refuse

to permit counsel access to the arrestee. Without

the information that an identifiable attorney is

presently available and offering assistance, the

arrestee cannot knowingly determine whether to

waive the right to counsel's presence.

C, AN ATTORNEY REPRESENTING

AN ARRESTEE IN AN EXISTING

ATTORNEY-CLIENT RELATIONSHIP

HAS THE AUTHORITY,

CONSTITUTIONALLY, TO ASSERT

THE RIGHT TO PRESENCE AT A

CUSTODIAL POLICE

INTERROGATION FOR ANY

CHARGE, REGARDLESS OF THE

ARRESTEE'S FAILURE TO

REQUEST COUNSEL.

Miranda defined the point of origin for the

Fifth Amendment right to counsel as the beginning

of custodial police interogation. Rhode Island v

Innis, 446 US 291 (1980). It is then that the

arrestee must be warned of the right to have an

attorney present, and that if an attorney cannot be

29.

afforded, one will be appointed prior to any

questioning. Miranda also defined one way in which

the arrestee could make the right to counsel

operational ——- by requesting counsel. Miranda did

not address the other modes by which the right to

counsel could be made operational, and it did not

limit the arrestee to one method of doing so.

Miranda does clearly recognize that the right to

counsel originates with custodial interrogation, and

may be invoked by the arrestee at any time.

It ought not to matter how the right to

counsel is made operational, as long as the point at

which the right originates has arrived. It ought not

to matter, for example, whether the right is made

operational by virtue of a contractual relationship

between counsel and third parties, usually family or

friends, or by a request to intervene made to a

public defender who has an existing, current

appointment for that client. In either case, the

right to counsel is "in being" by virtue of the

custodial interrogation; the particular mechanism for

30.

making the right to counsel operational may vary

according to the historical facts. The important

point is that the right to have counsel present is

operational when counsel's present availability is

asserted, regardless of who brings counsel into the

case.

Miranda barely adverted to the existing

attorney-client relationship and the right of counsel

to communicate with his or her client. In Miranda,

the Court recognized that it would be superfluous to

advise one who had a lawyer, or who could afford

one, that an indigent could have counsel appointed.

The Court uniformly required that the advice be

given to all individuals, Id, 384 US 473, n. 43.°/

Similarly, Miranda recognized that some individuals

may have an attorney present when warnings are

initially given. Id., 384 US 474, n. 44. At no

time did Miranda hold that a request for. counsel

was the sine gua non for counsel's presence at a

6/ But see California y Prysock, 453 US

355 (1981).

31.

custodial police interrogation. Rather, the request

for counsel discussed in Miranda was the triggering

device for the arrestee whose only access to counsel

was through the offices of the police. Miranda

assumed that there would be no attorney-client

relationship in existence at the time of arrest and

that the right to counsel originating at the time of

custodial interrogation could not, practically

speaking, be implemented other than by the

arrestee's request. ’/ Miranda is silent on the

problem of the arrestee who has a lawyer obtained

by family of friends, unknown to the arrestee.

Miranda does not authorize the police to

exclude existing counsel from access to the arrestee,

over counsel's request, until such time as the

arrestee actually requests counsel's presence.

Miranda does not hold that the arrestee has the

right to counsel only if the arrestee requests

7/ This was a natural assumption, given the

Court's then-recent decision in Escobedo

v' Illinois, 378 US 478 (1964). See

Miranda, supra, 384 US 465, n. 35.

32.

counsel; there is nothing in Miranda which permits

wholesale interference by the police with an existing

attorney-client relationship. To say, as did the

8/ that

Rhode Island Supreme Court in this case

"Nothing in the Miranda opinion... has indicated

that the right to counsel may be asserted by anyone

other than the arrestee.", is to create rights for the

police which Miranda never contemplated, namely,

the right to hold the arrestee incommunicado against

counsel's request to the contrary. See Darwin v

Conneticut, 391 US 346 (1963) [arrestee held

1.9/

incommunicado to counsel

An actual attorney-client relationship, created

by family or friends by retainer on behalf of the

arrestee, or resting on a pre-existing order of

appointment for an indigent, places the arrestee well

within the minimum protections of Miranda. The

decision in Miranda went beyond protecting only

those individuals who had lawyers. Individuals with

lawyers should not have less protection.

8/ State v Burbine, 451 A2d 22 (RI 1982)

9/ See also, cases cited in footnote 7.

33.

The Fifth Amendment right to counsel attaches

at the point of custodial interrogation. Amici

curiae argue that it becomes operational, and

authorizes an attorney's presence at such

interrogation, when the attorney-client relationship is

entered into and asserted by the attorney. It is

not, as Petitioner argues, that an attorney is

exercising Miranda rights for the arrestee. Rather,

the attorney seeking to confer with his or her

in-custody client is exercising the traditional

function of counsel in a setting constitutionally

recognized as affording the arrestee the guiding

hand of counsei. See People v Cavanaugh, 246 Mich

680, 688; 225 NW 501 (1929),19/

10/. The Michigan Supreme Court long ago

recognized the traditional authority of

counsel as a matter of state law:

"The defendant was held incommunicable.

He could not send for or employ counsel.

His father was refused right to see him.

When an attorney, presumably employed

by his father, appeared at the jail and

asked to see defendant, he was refused

the right to do so until the attorney

(Footnote Continued on Next Page)

34,

A public defender, unlike retained counsel, is

ordinarily only available to an indigent arrestee, on

the family's request, when the defender already

represents that arrestee in an earlier case. Where,

as here, there is an established attorney-client

relationship for a pending earlier case, the public

defender has a reason, indeed a duty, to intervene

on behalf of that client on the family's request. !1/

The new charge for which the arrestee is

interrogated may produce severe and complex

consequences in the pending case, such as bond,

probation, or parole revocation. Plea-bargaining in

the pending case may be affected if a confession

occurs. A pending trial may require additional and

(Footnote Continued From Previous Page)

started for the courthouse to get a writ

of habeas corpus. In this State a parent

may not be denied the right to see and

have conversation with a child in jail

and accused of crime. Neither may

police, having custody of one accused of

crime, deny an attorney, employed by or

in behalf of a prisoner, the right to see

and advise the accused."

11/. Private counsel also may be retained for

a client having multiple charges.

35.

significantly different preparation, based on the

possibility of similar-act evidence and admissions

gained by police at the interrogation on the new

case. Sentencing, or an appeal, may be pending in

the earlier case, and the consequences of an

increased sentence, a consecutive sentence, or an

habitual offender sentence, must be considered. All

of these factors require the attention of counsel and

support counsel's diligence in seeking to confer with

and advise the arrestee about the total consequences

of a confession. The arrestee in this situation is

not simply faced with a decision whether to confess;

yet the arrestee may think so, especially if he or

she is not aware of the consequences of doing so in

the earlier case. The arrestee is faced with much

the same complexity as the accused going to trial,

and therefore has an equal need of counsel's

assistance.

Even where there is no prior pending case, and

thus no appointed counsel operating under an

existing order of appointment, the third-party

36.

retention of counsel is a significant fact, denoting

that someone, usually the family, doubts that the

arrestee is capable of making the choices required

in the custodial interrogation setting without the

assistance of counsel. The decision to make

operational the Fifth Amendment right to counsel

should be honored as a societal interest, flowing

from the community's justifiable apprehension of

incommunicado interrogation. American families and

friends are entitled to resist the isolation of the

arrestee by making operational the right to counsel.

The formal appointment of a public defender

on a given case on which the arrestee is to be

interrogated is unnecessary where there is an

existing order of appointment on a prior, pending

case. !2/ The State has already recognized that the

12/. The First Circuit in the case at bar

limited its holding to lawyers having a

continuing relationship to the client and

his family as would parallel a privately

retained lawyer. Burbine v Moran, 753

F2d 178, 187, and see 183 n. 3, (CA 1,

1985).

37.

arrestee is an indigent person. The public defender

need not be appointed for trial in the new case to

consult with the arrestee and be present for

custodial interrogation in that case. As mentioned,

there is the possibility of an impact of the

interrogation on the existing case. Further, to

allow the affluent to retain counsel but to force

the indigent to await the ponderous mechanism of

formal appointment is to discriminate on the basis

of wealth in favor of the former and against the

latter. The existence of a present attorney-client

relationship with a public defender should suffice.

In some localities, an indigent may be

represented on one case by a public defender

assigned from a list of attorneys. After

arraignment on a new charge, the same arrestee

may be appointed a private attorney who is on the

list. The fact that the public defender may not be

appointed for trial on the later case does not alter

the availability of that defender, then and there, to

act as temporary counsel for purposes of custodial

38.

interrogation. Indeed, the public defender may be

the only attorney the arrestee has at the moment.

To hold forth the Fifth Amendment right to counsel

at the inception of custodial interrogation, but to

restrict the method of making that right operable to

only those having private means, would be an

unwarranted and unfair discrimination based on

wealth. To further restrict the arrestee to one

mode of making the right to counsel operational -

by his or her own request - would ignore the

traditional role of the attorney in an existing

attorney-client relationship. A lawyer's job is to

assert rights on behalf of clients.

The Fifth Amendment right to counsel,

originating as it does at the inception of custodial

interrogation, can become operational by virtue of

an attorney-client relationship, even absent a request

by the arrestee. Respondent's sister placed in

operation his right to counsel. The public defender

assented to that request in this case. The police

should have honored counsel's request to assist her

39.

client by, at minimum, accurately informing counsel

of the status of interrogations, informing Respondent

of her offer of assistance, and providing access to

Respondent if so requested by either.

40.

Il, THE RIGHT TO THE ASSISTANCE

OF PRIVATE COUNSEL,

OBTAINED BY OR ON BEHALF

OF AN ARRESTEE HELD IN

POLICE CUSTODY, REQUIRES

THAT COUNSEL'S REQUEST TO

CONSULT WITH THE

ARRESTEE-CLIENT BE GRANTED

PROMPTLY, AND THAT

COUNSEL'S INQUIRIES

CONCERNING THE ARRESTEE'S

STATUS BE ANSWERED

HONESTLY.

In addition to his Fifth Amendment claim —

that the police conduct here fatally undermined the

volunteriness of the Respondent's confession — the

Respondent also alleges that he was denied his Sixth

Amendment right to consult with counsel previously

retained by him in another case, }3/ That right of

13/ Though counsel was a public defender,

the relationship with the client was

established by two different means:

first, counsel already represented the

Respondent in a prior action which would

necessarily be affected by the arrest in

question, and counsel would almost

certainly be appointed to represent the

same client in his later difficulties;

second, counsel was asked by the

Respondent's sister to undertake the

representation.

(Footnote Continued on Next Page)

41.

consultation with a lawyer already working on a

defendant's behalf is necessarily broader than the

defendant's right to have counsel appointed. Thus,

although a Sixth Amendment right to appointment of

counsel may not attach “until the initiation of

1 4/

adversary judicial proceedings, United States v

Gouveia, US , (1984), any person

incarcerated must have, at least, the right to know

that counsel is retained, and is available for

consultation and assistance.

Moreover, particularly where counsel represents

(Footnote Continued From Previous Page)

Either means of representation by

retained counsel -- prior representation

or the direction of a close family

member -- is sufficient to trigger the

arrestee's right to consult with that

counsel. As the Court of Appeals noted,

this is not a case that threatens "an

influx of volunteering attorneys with no

past or present relationship to the

client." 753 F2d at 187.

14/. Of course, the Fifth Amendment may

require appointment of counsel earlier.

See discussion supra and Miranda v

Arizona, 384 US 436 (1966).

42.

the client in a previously pending criminal action,

the Sixth Amendment right to counsel in that prior

case is abridged when counsel is denied access to

the client in a later arrest. Clearly, the later

arrest may have many serious repercussions for the

success of the original representation and, again, the

client must at least be informed that counsel is

available for consultation.

The core meaning of the right to counsel is

the right to retain one's own counsel at one's own

expense. Beaney, The Right to Counsel in American

Courts, 21, 32 (1955). Chandler v Fretag, 348 US 3

(1954),15/

15/_ The right to the appointment of counsel

at public expense evolved from the right

to private counsel. Powell v Alabama,

287 US 45 (1932); Gagnon v Scarpelli,

411 US 788 (1973)[Fourteenth

Amendment]; Johnson v Zerbst, 304 US

458 (1938); Gideon v Wainwright, 372 US

335 (1963) [Sixth an cepinwright, While the

"fair-adjudication" interest which informs

the right to court-appointed counsel may

dictate the scope of that right, see e.g.,

Ross v Moffit, 417 US 600 (1974) [no

right to court- -appointed counsel for

(Footnote Continued on Next Page)

43.

Respondent Burbine's own counsel in the case

at bar happened to be a Allegra Munson, a public

defender whose office had been duly appointed to

represent him on an earlier, pending case. Ms.

Munson telephoned the Cranston police station

because she was standing in for a colleague, and

because she was acting as Respondent's legal counsel

at the request of his sister. Having undertaken to

act on Respondent's behalf, and in the good faith

anticipation of the future appointment of her office

in the matter at hand, Ms. Munson essentially was

operating as Respondent's own lawyer, privately

obtained on his behalf. /8/ An attorney-client

(Footnote Continued From Previous Page)

discretionary appeal to state Supreme

Court following counseled direct appeal

in state intermediate court], a similar

interest is not the rationale for the right

to use one's own iawyer as one's

representative in dealings with

government officials. Adverse state

action, in the form of an arrest and

incarceration, suffices to require the

state to recognize the right to

representation by one's own counsel.

16/ As stated previously, Respondent's counsel

also must be deemed to have had a

(Footnote Continued on Next Page)

44,

relationship was already established between

Respondent and his public defender attorney. When

that attorney undertook to act on Respondent's

behalf upon the request of his sister, and asserted

the attorney-client relationship, the constitutional

right to the assistance of privately obtained counsel

was invoked. While Respondent could repudiate the

attorney-client relationship, had he known about it,

he was not so informed. The police officials in

this case thwarted that attorney-client relationship

by misleading counsel about Respondent's

interrogation status, and by failing to inform

Respondent of counsel's inquiry and offer to be

present for a lineup or interrogation.

In Escobedo v Illinois, 378 US 478 (1964), the

Court suppressed a confession made during a

(Footnote Continued From Previous Page)

continuing interest in Respondent's

in-custody status based upon her

appointment in the earlier case, and the

consequences for that case of his

subsequent arrest and interrogation by

police.

45.

preindictment custodial interrogation where both the

arrestee and his retained counsel requested and were

denied the opportunity to consult with each other.

Although the precise holding of Escobedo has been

narrowly defined, Johnson v New Jersey, 384 US

719, 733-734 (1966), and limited to its facts, Kirby

v Illinois, 406 US 682, 689 (1972), Escobedo offers

useful guidance for the case at bar. First, the

Court cited with approval People v Donovan, 13

NY2d 148; 243 NYS 2d 841; 193 NE2d 628 (1963)

[{held: a confession taken from a defendant during

a period of preindictment detention, after his

retained attorney had requested and been denied

access to him, could not be used against him at

trial]. Escobedo, supra, 378 US 486-487. In

Donovan, supra, the New York Court of Appeals

said:

"It would be highly incongruous if

our system of justice permitted

the district attorney, the lawyer

representing the State, to extract

a confession from the accused

while his own lawyer, seeking to

speak with him, was kept from

him by the police." Id., at 152;

193 NE2d at 629.

46.

Escobedo also refused to apply Cicenia v

LaGay, 357 US 504 (1958) to the situation before

it, deeming Cicenia inconsistent, "and not to be

regarded as controlling". Id., 378 US 492.

This Court has previously considered, and

rejected the Sixth Amendment claim asserted here.

Cicenia v LaGay, 357 US 504 (1958). However, the

analysis of Cicenia has long since been discredited

and the decision was specifically repudiated by this

Court. Miranda v Arizona, supra at n. 48.

In Cicenia the accused was incarcerated and,

like Respondent in this case, did not specifically

request counsel. Nonetheless, a counsel previously

retained by the accused arrived at the police

station, requested access to his client, which was

refused until after the accused confessed. In

rejecting the defendant's Sixth Amendment claim,

the Court relied on Crooker v California, 357 US

433 (1958) — which held that even when an accused

requests an attorney the police need neither comply

nor discontinue their interrogiation -- and the

following rationale:

47.

"... petitioner would have us hold

that any state denial of a

defendant's request to confer with

counsel during police questioning

violates due process, irrespective

of the particular circumstances

involved. Such a holding, in its

ultimate reach, would mean that

state police could not interrogate

a suspect before giving him an

opportunity to secure counsel."

357 US at 509.

Today, of course, the right to the presence of

requested counsel during interrogiation is settled.

Miranda, supra. It necessarily also follows that the

Sixth Amendment includes the right to be notified

that counsel is available for consultation and

assistance during such an interrogation. Indeed, the

Miranda Court anticipated this conclusion, though in

dicta, by observing that in Escobedo, supra, the

police not only denied the defendant's request for

counsel:

"The police also prevented the

attorney from consulting with the

client. Independent of any other

constitutional proscription, this

action constitutes a violation of

the Sixth Amendment right to the

assistance of counsel and excludes

any statement obtained in its

wake." 384 US at 456, n 35.

48.

Moreover, Escobedo and Miranda aside, there is

good reason to question the soundness of Cicenia.

In a footnote in Cicenia, the Court relied upon

state cases that refused "an accused" the right to

consult with counsel during the period between

arrest and arraignment. In that same footnote, the

Court observed: "Most States have not had occasion

to rule on the issue before us, and it is generally

quite unclear in state law when the right to have

counsel begins. See Beaney, The Right to Counsel

in American Courts, 127-128; 3 ALR 2d 1003, 1032,

et seq." Cicenia, Id., 357 US 510 n 4.

Professor Beaney discussed the scope of the

right to counsel, as then interpreted by state courts,

and in Going so, wrote:

"Apparently, in our state

jurisdictions there is no procedure

short of obtaining a court order

which can compel officials to

permit access to the prisoner by

retained counsel." Beaney, at 127.

[footnotes omitted].

However, Professor Beaney failed to refer to

People v Cavanaugh, 246 Mich 680, 686; 225 NW

501 (1929) where the Michigan Supreme Court said:

49.

"An accused may be apprehended

and held in safe custody to answer

an accusation in court, but the

custodian of his person possesses

no inquisitorial power or right to

hold him incommunicable while

endeavoring to exact a confession.

Holding an accused incommunicable

to parents and counsel is a subtle

and insidious method of

intimidating and cowing, tends to

render a prisoner plastic to police

assertiveness and demands, and is

a trial of mental endurance under

unlawful pressure." Cavanaugh, at

686.

In Cavanaugh, an attorne’ retained by the

suspect's father appeared at the jail and asked to

see the defendant. He was refused the "right to do

so" until he was about to get a writ of habeas

corpus. Id., 246 Mich 688. The Court further said:

"Neither may police, having

custody of one accused of crime,

deny an attorney, employed by or

in behalf of a prisoner, the right

to see 74 advise the accused."

Id., 688.

17/ From the record the record quoted in

the Cavanaugh opinion it appears that

the suspect was an arrestee, and not an

"accused"; he had been arrested and held

for three days before he confessed. The

(Footnote Continued on Next Page)

90.

The only right to counsel that could have

attached on the facts of Cavanaugh was the right

to retained counsel. Thus, in 1929, twenty-nine

years before Cicenia, at least one state accepted as

a given the reciprocal rights of a privately obtained

attorney and his client to consult during custodial

police interrogation.

Today, the right to have appointed counsel

present during custodial police interrogation, upon

the request of an arrestee, is settled. Miranda,

supra; Edwards v Arizona, 451 US 477 (1981). The

major concern expressed in Cicenia v LaGay, supra,

is, therefore, moot. The right of privately obtained

counsel to gain access to the in-custody arrestee

(Footnote Continued From Previous Page)

police admitted to holding the suspect

incommunicado, but denied that he had

requested to see an attorney. Id., 687.

The conviction was reversed and a new

trial granted "at which the most

searching examination of all the

circumstances surrounding his alleged

confession will be permitted." Id., 689.

91.

was recognized, in principle, in Escobedo, and that

principle is supported by Miranda, supra, n. 35;

People v Cavanaugh, supra; and People v Donovan,

supra. 8/

18/ To the extent that Escobedo has been

construed as applying the Fifth

Amendment right to counsel, Kirby,

supra, it supports the rule that privately

obtained counsel must be afforded access

to a client held in police custody, on

counsel's request.

While the Fifth Amendment right

to counsel could and should support the

authority of counsel to gain access to

and consult with the in-custody arrestee,

the primary reason for counsel's presence

under the Fifth Amendment is to protect

the free exercise of the privilege against

self-incrimination. For the arrestee who

elects to make a statement, even against

the advice of counsel, there is a Sixth

Amendment interest furthered by

requiring counsel's presence. Absent

counsel's presence, the police who obtain

a statement from the arrestee are the

interrogators, recorder's and reporters of

that statement. At the subsequent trial

the fact-finder is forced to rely largely

upon the police to obtain an accurate

report of the statement, even apart from

any disputes as to the voluntariness of

the decision to speak, or the adequacy

of warnings regarding Miranda rights.

The intonations and connotations of

(Footnote Continued on Next Page)

92.

This Court has said that the purpose of the

(Footnote Continued From Previous Page)

questions and answers during an

interrogation are important, because

police officers often testify about what

they understood the arrestee to have

meant when he said certain words and

phrases, rather than reporting strictly the

questions and answers. Paraphrasing

often occurs during testimony. While

cross-examination is available at trial to

allow counsel to inquire behind

reportorial defects, cross-examination is

not an adequate protection. What is

needed is counsel's presence at the

custodial interrogation. Thus, Miranda

recognized that there is the possibility

that the Fifth Amendment right to

silence would be waived, but that

counsel's continued presence would be

required:

"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 that 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." See Crooker v California,

(Footnote Continued on Next Page)

93.

right to counsel is protect "an accused from

conviction resulting from his own ignorance of his

legal and constitutional rights":

(Footnote Continued From Previous Page)

357 US 433, 443-448 (1958)

(Douglas, J., dissenting). Miranda,

Id., 384 US 470.

If the right to counsel at custodial

police interrogation rests solely upon the

Fifth Amendment, and the need to

protect the privilege against

self-incrimination, then it would appear

that the police could simply require

counsel to leave the room once the

accused decides to talk. For if there is

no more privilege to protect, then there

is no need for counsel to protect it.

The rationale for counsel's continued

presence at an interrogation where the

accused elects to speak to the police

must be the Sixth Amendment and the

trial-related needs of the accused for a

fair inquiry, recording, and reporting of

his statements. Moreover, as illustrated

by Escobedo itself, unfair inquiry by the

police can take the form of erroneous

legal advice regarding the incriminating

nature of any responses. Id., 378 US

482, 486.

The nature of the confrontation at a

custodial interrogation, and the possibility

that the arrestee will elect to talk to

the police, are factors that make

counsel's presence necessary to preserve

the basic right to a fair trial. United

States v Wade, 388 US 218, 227 (1967);

United States v Ash, 413 US 300, 314

(1973).

34.

"The purpose of the

constitutional guaranty of a right

to Counsel is to protect an

accused from conviction resulting

from his own ignorance of his

legal and constitutional rights, and

the guaranty would be nullified by

a determination that an accused's

ignorant failure to claim his rights

removes the protection of the

Constitution." Johnson v Zerbst,

304 US 465.

Although addressing the right to appointed

counsel for a defendant at trial, Johnson v Zerbst

observed that the Sixth Amendment requires the

appointment of counsel for an accused who "is

unable to obtain counsel" and who has not waived

the constitutional guarantee. Id., 364 US 468.

The Court has not resolved the point at which

the right to privately obtained counsel attaches

under the Sixth Amendment; indeed, the law has

developed in the direction of the attachment of the

right to appointed counsel. }9/ In Gagnon v

19/ In United States v Gouveia, US

; 104 S Ct 2292 (1984) the Court

addressed the question of whether the

(Footnote Continued on Next Page)

55.

Scarpelli, 411 US 778, 783 n. 6 (1973), the Court

(Footnote Continued From Previous Page)

Sixth Amendment requires the

appointment of counsel before indictment

for indigent prison inmates confined in

administrative detention. The Court

reversed the lower court's holding that

the Sixth Amendment had attached.

Significantly, Gouveia did not involve

custodial interrogations, and rejected the

netion that the right to counsel attaches

at the time of arrest.

The formality of accusatory judicial

proceedings, although an important point

in a criminal case where the Sixth

Amendment right to counsel clearly does

attach, Brewer v Williams, 430 US 387

(1977); Massiah v United States, 377 US

201 (1964), ought not to limit, absolutely,

the scope of that right. The indicted

defendant who has not yet met his or

her lawyer at the time of a custodial

police interrogation has no greater need

for a lawyer's presence than the need

experienced by defendants such as Danny

Escobedo, and Respondent. Yet the

indicted defendant is said to be

"entitled" to a lawyer, see McLeod v

Ohio, 381 US 356 (1965); Hancock v

White, 378 F2d 479 (CA1 1967), while

Respondent, and Danny Escobedo, merely

had a lawyer. While the formal

commencement of adversary judicial

proceedings commits the state to a

prosecution, and, therefore, that test

indeed may be more than symbolic, the

need to preserve trial defenses is just as

real prior to the formal commencement

of adversary judicial proceedings when

the state's agents have dedicated

(Footnote Continued on Next Page)

36.

left open the question whether a probationer or

parolee has a due process right to retained counsel

when the state would not be required to furnish

counsel for an indigent. In Scott v Illinois, 440 US

367 (1979) the Court limited the right to appointed

counsel under the Sixth Amendment to individuals

(Footnote Continued From Previous Page)

themselves to prosecuting the arrestee

and intend to do so. In either situation,

the state has already begun to prepare

its case for trial. Regardless of the

formality of an indictment, the arrestee

has a similar need. The Sixth

Amendment right to counsel provides for

counsel to assist in the defense, and

should attach when the need to defend

begins.

In Gouveia the majority of the Court

approvingly quoted language from the

plurality opinion in Kirby v Illinois,

supra, 406 US 688-689, that the Sixth

Amendment right to counsel attaches

only at the time that adversary judicial

proceedings are initiated. However, in

light of the need for counsel for trial

preparation, the similar practical realities

facing the accused and the arrestee in

custodial police interrogations, and the

principle of Escobedo v Illinois, supra,

the Court should not so limit the

attachment of the Sixth Amendment right

to appointed counsel in the case at bar.

57.

who risk incarceration. Yet no one would seriously

argue that one tried for a misdemeanor for which a

fifty dollar fine could be imposed could not use

retained counsel for trial. It would be equally

implausable to argue that because there is no right

to appointed counsel for a discretionary appeal, one

could not employ counsel on one's own to prepare

such an appeal. See Ross v Moffitt, 417 US 600,

616 (1974). Nor would it matter if counsel

volunteered to try the case without a fee

agreement. A public defender representing a client

on a serious felony charge might volunteer to try a

misdemeanor case for that same client to avoid the

adverse consequences of a misdemeanor conviction

on the pending felony case. The constitution itself

ought to be indifferent to the motivation of counsel,

but solicitous of the attorney-client relationship, in

such an instance.

At minimum, the right to privately obtained

counsel should attach when a person is arrested and

held in custody, and it should become operational

38.

when invoked by counsel who has been privately

obtained on behalf of the arrestee, and who asserts

that representative capacity by requesting access to

the client. In Miranda, the Court referred to the

English procedure under the Judges’ rule. "The right

of the individual to consult with an attorney during

this period is expressly recognized." Id., 384 US

488, and note 58.

The Federal Bureau of Investigation informed

this Court that: "when counsel appears in person,

he is permitted to confer with his client in person"

Miranda, Id., 384 US 485.29/ it is simply

reasonable for the Constitution to recognize that the

role of counsel is to advise an incarcerated client

when counsel is called into the case by family or

friends. Regardless of whether an attorney is a

public defender or in private practice, a midnight

phone call from the family, requesting a visit to an

incarcerated client, is a routine occurrence. There

20/ See United States v Hinckley, 672 F2d

115, 121 (CA DC 1982).

59.

is no significant state interest to justify excluding

counsel from such consultation until the arrestee

specifically requests counsel's presence pursuant to

Miranda warnings. 21/

21/ There are many reasons to require access

by counsel, rather than mere notification

of counsel's availability. First, the

police control the notification process,

and that fact alone expresses to the

arrestee the very isolation which

counsel's access could dispel. Second,

the family may be concerned for the

arrestee's health or mental status --

suicides do occur in jail where the terror

and isolation of arrest and detention are

pronounced. The family may believe

that the arrestee was injured, even

beaten, at arrest, and want to be

assured that adequate medical treatment

is provided. Counsel's ability to dispel

the arrestee's sense of isolation by

conveying support and reassurance is a

significant interest. The ability of the

police to wholly isolate the arrestee, and

refuse any information to or from the

outside world, is an awesome power.

Access by counsel, as a representative of

the outside world, to assure that the

arrestee is in a specific place, and alive,

is necessary to a civilized society's

ability to govern with decency and

legitimacy. Public confidence in the

criminal justice system depends, in part,

on the ability of the public to monitor

the conditions and status of a family

(Footnote Continued on Next Page)

60.

Obviously, some non-indigent persons do not

have lawyers, or family or friends who will obtain a

lawyer, and therefore, the invocation of the right to

private counsel, for those individuals, will not occur

unless the individual requests an opportunity to

obtain counsel. Equally, not all indigents have a

relationship with a public defender, and they are

similarly removed from the possibility that their

family will obtain a public defender's intervention.

But any recognition of the right of access by

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member subject to the power of arrest

and incarceration. Counsel also needs to

learn from the arrestee the facts

pertinent to the arrest, so that necessary

legal procedures may be employed, where

appropriate, such as habeas corpus or

bond, and also so that preparation of a

defense may begin at the optimal

moment. Even the very charges that

eventually will be brought may change, if

counsel, armed with the facts, can

discuss the case with the charging

authorities prior to charges being

brought. Few of these interests are

furthered by permitting the police to

exclude all access by counsel and to

permit only minimal communication, on

their terms and in their manner.

61.

private counsel, obtained by third parties of means,

requires that an indigent arrestee also be allowed

the right to private counsel where the free services

of counsel are in fact obtained. Douglas v

California, 372 US 353 (1963); Griffin v Illinois, 351

US 12 (1956); Ross v Moffitt, 417 US 600 (1974).

Clearly, counsel needs an honest response from

the police concerning the status of the arrestee,

including location, interrogation status, and the

procedure for visiting. The police ought not to be

permitted to interfere with the exercise of the right

to private counsel by misleading counsel, as was

done in the case at bar. Public confidence in the

criminal justice system will falter, and be lost, if

the practices which occurred in this case are

upheld. Either the Sixth Amendment right to

counsel, or the Fourteenth Amendment due process

right to private counsel, should apply and protect

the right to the assistance of privately obtained

counsel for Respondent in this case.

62.

CONCLUSION

The United States Court of Appeals for the

First Circuit correctly decided the case at bar, and

its decision should be affirmed. Respondent did not

and could not knowingly and intelligently waive the

right to counsel where he was not informed that his

lawyer was presently available and offering to be

present for interrogation, or that she had been told

that there would be no questioning that night.

Moreover, the misleading police response to counsel

interferred with the attorney-client relationship.

This Honorable Court should affirm the right to

counsel to gain access to a client held in custody,

and condemn the police tactics that occurred in this

case. Respondent's right to counsel was violated.

For all of the foregoing reasons, the relief granted

below should be affirmed.

63.

Respecttully submitted,

JACK D. NOVIK

American Civil

Liberties Union

Foundation

132 west 43rd Street

New York, NY 10036

(212) 944-9800

JOHN A. MACFADYEN

Rhode Island Civil

Liberties Union

91 Friendship Street

Providence, R.I. U2983

(401) 521-5130

KIM R. FAWCETT

(P 25533)

Assistant Appellate

Detender

State Appellate

Detender Oftice

North Tower, 3rd Fl.

1200 Sixth Avenue

Detroit, MI 48226

(313) 256-2814

JAMES R. NEUHARD

Counsel of Record

National Legal Aid and

Defender Association

1625 K Street N.W.

8th Floor

Washington, D.C.

(202) 452-0620

20006

Counsel for Amici Curiae

64