# Amicus Curiae Brief — Moran v. Burbine

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0309%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1098

## Text

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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

(Footnote Continued From Previous Page)

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0309%3A13. Public record. Not legal advice.