Amicus Curiae Brief — Moran v. Burbine

Supreme Caurt, U.S.

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No. 84-1485. NG RE 385

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sl ch ; | JOSEP F_ SPS re. oe.

Ly ag See oe Ramee

» . Supreme Court of the United States.

| OcTOBER TERM, 1985.

# : JOHN MORAN,

is PETITIONER,

Vv.

BRIAN K. BURBINE,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT.

Brief for the National Association of Criminal Defense

Lawyers and Association of Trial Lawyers of America

as Amici Curiae Supporting Respondent.

JUDITH H. MIZNER

ScoTT BALDWIN NANCY GERTNER

1050 31st St.,.N.W. Davip L. KELSTON

ba + rena 4 SILVERGLATE, GERTNER, BAKER,

: : FinE & Goop

For Amicus Curiae

«ei : 88 Broad Street

Association of Trial

Lawyers of America Boston, MA 02110

: (617) 542-6663

For Amicus Curiae

Nati«nal Association of

Criminal Defense Lawyers

INTEREST OF THE AMICI CURIAE

The National Association of

Criminal Defense Lawyers (NACDL) is a

national bar association, headquartered

in Washington, D.C., whose membership

includes several thousand attorneys

involved in fulltime criminal defense.

NACDL intervenes as amicus curiae only

in cases of demonstrable significance to

the administration of criminal justice.

The Association of Trial Lawyers of

America (ATLA) is a national bar

association with approximately 55,000

memb2rs, many of whom represent criminal

defendants. ATLA intervenes as amicus

curiae only in those criminal cases

which it believes present issues of

national importance.

This case presents one of those

issues. The United States Court of

“Za

Appeals for the First Circuit held that

a defendant in police custody cannot be

found to have knowingly and

intelligently waived his Fifth Amendment

right to consult with counsel prior to

any interrogation and to have counsel

present at any interrogation where the

police wrongfully withheld crucial

information from a young, inexperienced

and poorly educated defendant. The

crucial information here was that

counsel had called the police station,

was available and stood ready to be at

defendant's side if an interrogation or

a lineup took place, and had been

affirmatively and deceptively told that

no interrogation would be undertaken

that night. This information would not

only have advised defendant of the ready

availability of his counsel, but would

also have informed defendant that the

— 2

police were not being truthful to hin.

The decision of the First Circuit,

firmly grounded on established

principles for determining whether a

purported waiver is knowing and

intelligent, should be affirmed.

SUMMARY OF THE ARGUMENT

The constitutional right to consult

with counsel before submitting to

custodial police interrogation is well-

established. Although this right may be

waived, an effective waiver must be

voluntary, knowing and intelligent. The

court below properly held that there was

no knowing and intelligent waiver of the

right to consult with counsel, where the

police wrongfully concealed from the

young and inexperienced suspect that his

attorney had called the police station

inquiring about his situation, that she

ei

had expressed her willingness and desire

to be present if he was to be

interrogated or put in a lineup, and

that she was deceptively assured that he

would not be interrogated that evening.

Petitioner's arguments that the

holding below needlessly extends and

complicates Miranda v. Arizona, 384 U.S.

436 (1966), and that it will improperly

interfere with the ability of a suspect

to waive his rights or the ability of

the police to interrogate suspects, are

groundless and based on a misapprehen-

sion of what the First Circuit actually

held. In fact, while the decision below

in no way extends Miranda, reversal of

that decision will seriously, perhaps

devastatingly, undermine the constitu-

tionaliy protected right of an arrested

person to consult with counsel before

submitting to police interrogation.

- 5 «-

NO EFFECTIVE WAIVER OF

RIGHTS CAN BE FOUND IN THIS CASE

Miranda held that an accused has a

Fifth and Fourteenth Amendment right to

consult with counsel prior to

questioning and to have counsel present

during custodial interrogation. Miranda

v. Arizona, 384 U.S. at 471; Edwards v.

Arizona, 451 U.S. 477, 482 (1981). This

component of the Fifth Amendment

privilege against compulsory self-

incrimination flows from a recognition

of the vital role the defense attorney

plays in “the administration of criminal

justice under our Constitutic.", and

v. Arizona, 384 U.S. at 481; Fare v.

Michael C., 442 U.S. 707, 722 (1979),

and the particularly effective role that

counsel can play to prevent police

overreaching. Miranda v. Arizona, 384

U.S. at 466.

While a person may waive the right

to consult with counsel prior to inter-

rogation or to have counsel present at

interrogation, such waiver must not only

"be voluntary, but must also constitute

a knowing and intelligent relinquish-

ment" of the right. Edwards v. Arizona,

451 U.S. at 482; Oregon v. adshaw, 462

U.S. 1039, 1046 (1983). The court must

inquire

into the totality of the

circumstances surrounding the

interrogation, to ascertain

whether the accused in fact

knowingly and voluntarily

decided to forego his rights to

remain silent and to have the

assistance of counsel.

Fare v. Michael C., 442 U.S. at 725.

See Oregon v. Bradshaw, 462 U.S. at

1046; Edwards v. Arizona, 451 U.S. at

482; North Carolina v. Butler, 441 U.S.

369, 374-375 (1979); Johnson v. Zerbst,

—

304 U.S. 458, 464 (1938). There is a

heavy burden upon the government to dem-

onstrate waiver of the right to the ad-

vice of counsel, see Miranda v. Arizona,

384 U.S at 475, and

any evidence that the accused

was threatened, tricked, or

cajoled into a waiver will...

show that the defendant did not

voluntarily waive his

privilege.

Id. at 476.

After assessing the totality of the

circumstances here, the court below

concluded that the government had not

met its heavy burden of demonstrating an

effective waiver. The stark and

disturbing facts of the case show that

the First Circuit was clearly correct.

First, defendant was young,

indigent, poorly educated, and rela-

tively inexperienced in the criminal

—

justice system.1 Although he had been

arrested once before, and counsel had

been retained for him through the Public

Defender's Office, he had not yet met

with counsel concerning that charge.

These factors show the significant risk

that defendant's free will could be

easily overborne by experienced police

officers.

Second, although defendant res-

ponded to a single officer's questions

concerning his nickname prior to receiv-

ing his Migzanda warnings, he refused to

answer any questions immediately after

the warnirgs were first provided.2 Once

defendant invoked his rights, interroga-

+ See Edwards v. Arizona, 451 U.S. at

483 (background and experience of the

accused is relevant to the issue of

waiver); Johnson v. Zerbst, 304 U.S. at

464 (1938) (similar).

2See Burbine v. Moran, 753 F.2d 178, 180

(lst Cir. 1985).

= 2

tion should have ceased entirely. 3

Nonetheless, interrogation was soon

resumed, under particularly intimidating

circumstances. Yet, confronted by five

officers only three hours after he had

first invoked his rights, Burbine still

refused to waive those rights.

Although questioning was again

terminated and it was then after 9:00

p.m., defendant was not returned to his

cell for the night. Instead he was kept

in an interrogation room, as he had been

for almost six hours. The message to

the defendant could not have been

clearer. The police had no intention of

ceasino their efforts to interrogate him

“See Miranda v. Arizona, 384 U.S. at

473-474 ("If the individual indicates in

any manner, at any time prior to or

during questioning, that he wishes to

remain silent, the interrogation must

cease"); cf. Michigan v. Mosley, 423

U.S. 96, 105-106 (1975).

« 19 «

or of honoring the rights they had

informed him he possessed. 4

Finally, and critically, defendant

was not informed that his counsel had

called to inquire about his situation,

that she expressed her desire to be

present at any interrogation, and that

she was assured that he would not be

interrogated that evening. The impact

of this police action is fourfold.

First, failing to tell Burbine that

an attorney had called about his

situation could only exacerbate his

sense of isolation and hopelessness.

Defendant was led to believe,

4 The amicus brief of the United

States appears to recognize the

significance of a defendant's initial

invocation of the right to silence. See

Brief for the United States at fn 16.

Amici here agree with the United States

as to the importance of an initial

invocation of the right to silence, and

point out that exactly such an

invocation occurred in this case.

» ih «

erroneously, that no help would be

forthcoming -- no help from his sister

and no help from an attorney. See

ra v. A ona, 384 U.S. at 450.

Second, concealing from Burbine

that his attorney had not simply made a

half-hearted inquiry into his situation

but, rather, had told the police that

she desired to be present during any

interrogation, left him with no idea

that his advocate was prepared to

consult with him immediately and to be

present during any interrogation.5

Third, had defendant known that his

attorney had been assured that there

SObviously, telling defendant that his

attorney was prepared to attend a night-

time interrogation would have impressed

upon him that he did, in fact, have the

ability to effectuate his right to

consult with counsel and to have counsel

present at any interrogation. It would

also have informed him that counsel

believed her presence was important.

o 12 «

would be no interrogation that night he

would have understood why no help was

forthcoming, and he would have been

warned that the police were not acting

as they had told his attorney they

would.

Fourth, misleading the attorney

into believing that there would be no

interrogation that night lull7d her into

inaction and stopped any addicional at-

tempts to-ensure that Burbine knew of

her immediate availability and her de-

sire to be present at any interrogation.

In sum, defendant was compelled to

act with an erroneous understanding of

the true nature of his situation,

created by the authorities, and without

information crucial to a knowing and

intelligent decision. Although amici do

not suggest that a suspect must be told

everything arguably relevant to the

@ 33 «

decision to waive in order for the

waiver to be valid, amici do contend

that, at the least, a knowing and

intelligent waiver of the right to

consult with counsel cannot be found

when the police stand between the

suspect and the outside world and

mislead him by withholding critical

information concerning his attorney's

availability and desire to be present.

Indeed, any other conclusion would

render Miranda a form without substance.

In setting out specified warnings,

Miranda requires the provision of

certain facts which are, by definition,

material to a person's decision to waive

his Fifth Amendment privilege. Most

prominent among these are that the

person need not answer police questions

and that the person may consult with an

attorney. To then find that the police

e 14

may withhold information essential to

effectuate those rights - namely that a

lawyer is ready and willing to assist -

abrogates the essence of Miranda.

Miranda warnings are not simply words to

be mechanically intoned and no more.

Where defendant invokes those rights and

counsel is figuratively at the door the

police must not take action that keeps

defendant from his attorney. |

The First Circuit-held that a

knowing and intelligent waiver of

defendant's right to consult with

counsel will not be found under the

stark facts of this case. This holding

is reasonable and necessary to protect

a defendant's right to seek advice of

counsel, as well as to protect the

integrity of the interrogation process

and defense counsel's role in that

process.

- 15 -

Deliberate or reckless

misleading of an attorney, who

has a legitimate, professionally

ethical interest in a suspect in

custody and who expresses to the

police a desire to be present at

any interrogation of the

suspect, combined with a police

failure to communicate that

exchange to the suspect....

vitiates any claim that a waiver

of counsel was knowing and

voluntary.

Burbine v. Moran, 7525 F.2d at 187.

And, as the court emphasized, its

ruling is limited. A defendant is still

free knowingly and intelligently to

waive his Miranda rights, and is free,

following such a waiver, to incriminate

himself without the advice of counsel.

But defendant and his lawyer must not be

affirmatively misled by the police.

Id. In addition, defendant need be in-

formed of counsel's interest and avail-

ability only where there exists some

real and continuing relationship between

» 16 «

the attorney and the client. Id.

THE PETITIONER AND AMICI SUPPORTING

PETITIONER APPEAR SERIOUSLY TO

AP N W

Petitioner and amici supporting

petitioner level various criticisms at

the holding of the First Circuit which,

when that holding and the facts here are

considered with care, appear aimed at

some other opinion. They argue that:

1) following the First Circuit's

holding, it is no longer the defendant's

free choice, but instead the lawyer's,

that will decide whether the defendant

waives Fifth Amendment rights; 2) the

holding below will hopelessly obscure

the bright line Miranda rule; 3) the

holding below unnecessarily adds to

Miranda by requiring that before inter-

rogation the police provide defendant

with extensive information concerning

the consequences of his statements; and

4) police will lereinafter be handi-

capped in their jefforts to interrogate

by innundations lot meddlesome inquiries

by attorneys with little or no

relationship to persons in custody.

None of the criticisms can

withstand scrutiny.

The contention that the First

Circuit's opinion opens the door to an

attorney's waiving the accused's Fifth

Amendment rights® is simply groundless.

Nothing in the holding removes from the

defendant his personal Fifth Amendment

right and his - and only his - ability

to waive that right, and nothing in the

holding provides counsel with a new role

& See, e.g., Petitioner's Brief at 31l-

32; Brief Amici Curiae Submitted by the

States (hereinafter "States' Brief") at

20; Brief Amici Curiae of Americans for

Effective Law Enforcement, Inc. at 5.

— =

in effecting or preventing that waiver.

The holding simply re-affirms the

established principle that a waiver of

the right to seek advice of counsel must

be knowing and intelligent.’ Properly

placing the burden upon the government

to establish waiver, and properly and

carefully reviewing the facts and

circumstances of this case, the First

Circuit reasonably concluded that a

knowing waiver could not be found where

the specific and crucial information

that his counsel wished to be present

during interrogation was withheld by the

police from the defendant and where

counsel was told that no interrogation

would occur.® The court's unremarkable

y Petitioner and its amici, not

surprisingly, generally overlook the

fact that a waiver must be knowing and

intelligent as well as voluntary.

3 The First Circuit's approach was

o 39 «

holding, far from providing counsel with

a new and unprecedented right to waive,

is that, assuming the accused and his

counsel have been treated with a modicum

of honesty, the accused remains free to

effect whatever waiver he chooses.

As to the suggestions that the

holding below will drastically blur the

bright lines of Miranda,? it need only

be pointed out that what is "bright-

line" about Miranda is the fact that

warnings must be given. There is no

thus in line with the majority of

opinion. See Commonwealth v. Sherman,

389 Mass. 287 (1983); Weber v. State,

457 A.2d 674 (Del. 1983)? People v.

Smith, 93 Il1l1.2d 179 (1982), cert.

denied 461 U.S. 937 (1983); State v.

Matthews, 408 So.2d 1247 (La. 1982);

- Commonwealth v. Hilliard, 471 Pa. 318

(1977); State v. Haynes, 41 Or.App. 465

(1979) (en banc), cert. denied 446 U.S.

945 (1980); State v. Jones, 19 Wash.App.

850 (1978).

9 See, e.g., States Brief at 15;

Petitioner's Brief at 13 et seq.

« 26 «

question that, with few exceptions, }°

incriminating statements elicited from a

defendant without the prior

administration of the Miranda warnings

will be held inadmissible as violative

of the Fifth Amendment. But, where the

government alleges a waiver of Miranda

warnings, the courts have been faced not

with bright lines, but with the need to

inquire, post hoc, into all the relevant

circumstances to determine whether the

waiver was voluntary, knowing, and

intelligent. .

The First Circuit has done nothing

to complicate the inquiry. It has

merely stated, as should be expected,

that among the relevant circumstances to

iV See New York v. Quarles, 104 S.Ct.

2626 (1984) (establishing a limited

public safety exception to the

requirement that the suspect in custody

be provided Miranda warnings prior to

interrogation).

» #1 «

be inquired into is the information

provided to or withheld from defendant

concerning his attorney's inquiries, and

the actions, if any, taken by the police

to discourage the attorney's attempts to

contact defendant.

The related cortention put forward

by petitioner and its amici, that the

First Circuit approach will needlessly

burden the police and improperly expand

Miranda by requiring that police

"provide suspects with all information

relevant to the waiver decision," Brief

of the United States at 20, can be

similarly disposed of, since the

opinion, quite simply, does no such

‘thing. The police are hardly required

to give "all information relevant to the

waiver situation" - rather, they merely

are admonished not to deceptively

o 23 «

withhold certain crucial information.

This admonition is, as the case law

demonstrates, hardly novel.11l

Finally, the suggestion that police

work will be rudely interrupted by med-

dlesome attorneys claiming to represent

persons in custody -- perhaps lawyers

making the claim by way of "a nationally

computerized list", Petitioner's Brief

at 32 - is obviously nonsensical, in

light of the First Circuit's clear

limitation of its holding to attorneys

who demonstrate a substantial

relationship with the defendant. See

urb v. Mo , 753 F.2d at 87.

It should be noted that a general

llsee, e.g., Commonwealth v. Hilliard,

supra; Commonwealth v. McKenna, 355

Mass. 313 (1969); State v. Haynes,

supra; cf. United States v. Wedra, 343

F.Supp. 1183 (S.D.N.Y. 1972) (attorney

deceptively assured client would not be

questioned. )

e 23 «

implication of all these arguments - and

a svaqgestion that permeates the briefs -

is that defense attorneys are

interlopers in the law enforcement

process who must be kept from contact

with their clients lest they interfere

with the police right to interrogate.

However, Miranda makes it unequivocally

clear that a person in custody has the

right to consult with counsel prior to

any interrogation and has the right to

have counsei present at such

interrogation in order that counsel may

serve its important prophylactic

function. +2

1l2This Court should again reject here

the position that police misconduct can

be sanitized by the subsequent provision

of Miranda warnings -- a position that

has been repeatedly rejected by this

Court in the context of the Fourth

Amendment. See, e.g., Brown v.

Illinois, 422 U.S. 590 (1975) ;Taylor v.

Alabama, 457 U.S. 687 (1982).

- 24 -

REVERSAL OF THE OPINION BELOW WILL

ENCOURAGE POLICE LAWLESSNESS THAT

UNCONSTITUTIONALLY INTERFERES WITH

DEFENDANTS' RIGHTS TO SEEK ADVICE

OF COUNSEL

Both petitioner and its amici

completely ignore the impact of

reversing the decision below. Reversal

will place a judicial imprimatur upon

official dishonesty that will serve to

undermine a defendant's right to seek

the advice and presence cf counsel in

connection with custodial interrogation

despite the recognition that counsel's

presence serves an important

Similarly, this Court has rejected the

position that "consent" obtained through

misleading acts of the police can be

“zemed voluntary for constitutional

purposes. See, e.g., Bumper v. North

Carolina, 391 U.S. 543 (1968). It should

now reject the contention that the right

to consult with counsel and have counsel

present at custodial interrogation can

be abrogated by affirmative

misrepresentations to defense counsel

and concealment of counsel's efforts to

reach the client prior to interrogation.

e 28 «

prophylactic function. It will serve to

exclude counsel from consulting the

client until the police decide that

access is appropriate. The message will

be that it is permissible for the police

to mislead defense attorneys while they

conceal crucial information from young,

inexperienced and poorly educated

clients, who are repeatedly questioned

until they "waive" their right to

consult counsel. If the police can

misrepresent with impunity their intent

to interrogate a suspect, what is to

preclude them from misrepresenting to

counsel when interrogation will occur,

where it will occur, or even whether the

client is in custody? Will the police

be able to deny access to an attorney

who arrives at the station requesting

access to a client, to "forget" to

mention that an attorney is at the door?

oe 26 <

In short, can police actions that result

in the complete isolation of a suspect

until the police deem that consultation

with counsel is appropriate be held

permissible?

Amici submit that this path must be

rejected. The Fifth Amendment provides

a suspect in police custody with the

right to consult with counsel. Miranda

expressly recognized the salutary

purpose of the presence of counsel

during the interrogation process.13

That right will be ren ered meaningless

and that purpose will be totally

thwarted if the police can exclude

counsel at will by misrepresenting the

suspect's status to the attorney.

Reversal here will unfairly

undermine the rights of the indigent or

+-See Miranda v. Arizona, 384 U.S. at

469-470.

« 29 «

those inexperienced with the criminal

justice system who do not have an

attorney to call directly, but who call

a family member or friend to obtain

legal assistance. An attorney contacted

directly is likely to advise the client

to await the attorney's arrival before

agreeing to answer questions, and is

likely to be at the police station as

soon as possible.14 A person who must

rely or the intervention of others has

no assurances that help is on the way

and no preliminary advice. Thus, it is

likely to be the indigent or those

inexperienced with the criminal justice

system - those persons most likely to

14 It should be noted that the attorney,

upon consideration of the best interests

of the client, often advises cooperation

with the police, as evidenced, inter

alia, by the number of guilty pleas

entered.

- 28 -

need the early intervention of counsel -

who will be left to fend for

themselves. 15

CONCLUSION

The court below simply held that

the police cannot affirmatively act to

negate the protections of the Miranda

warnings by concealing information that

is central - not peripheral or arguably

relevant - to a knowing and intelligent

decision to waive the rights they

provide. This decision should be

I5The importance of early intervention

by counsel and the recognition of the

importance of the custodial

interrogation phase has recently been

emphasized by the increasing numbers of

public defender offices which have begun

instituting "on call" systems to assure

that persons who are taken into custody

outside of normal business hours will be

able to receive assistance of counsel at

that crucial stage.

affirmed.

- 29 -

Respectfully submitted,

JUDITH H. -MIZNER

NANCY GERTNER

DAVID L. KELSTON

SILVERGLATE, GERTNER,

BAKER, FINE & GOOD

88 Broad Street

Boston, MA 02110

(617) 542-6663

For Amicus Curiae

National Association

of Criminal Defense

Lawyers

SCOTT BALDWIN

1050 3lst St., N.W.

Washington, DC.20007

(602) 965-3500

For Amicus Curiae

Association of

Trial Lawyers of

America