Respondents Brief — Michigan v. Jackson

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Supreme Court, U.S.

FILED

AUG 7 1985

? JOSEPH F. or wi, JR | OO

No. 84-1531 er al

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

MICHIGAN,

Petitioner,

ROBERT BERNARD JACKSON,

Respondent.

On Writ Of Certiorari To The

Michigan Supreme Court

BRIEF FOR RESPONDENT

STATE APPELLATE DEFENDER OFFICE

r} JAMES R. NEUHARD

Defender

JAMES KROGSRUD

(Appointed by this Court)

Assistant Defender

Third Floor, North Tower

1200 Sixth Avenue

Detroit, Michigan 48226

(313) 256-2814

Counsel for Respondent Jackson

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

——e

_ BEST T AVAILABLE COPY

COUNTER-STATEMENT OF QUESTIONS PRESENTED

I. Was CERTIORARI IMPROVIDENTLY GRANTED BECAUSE

Il.

THE MICHIGAN SUPREME CouURT’S JUDGMENT REVERS-

ING RESPONDENT'S CONVICTION Was BASED ON ADE-

QUATE AND INDEPENDENT STATE GROUNDS, I.E., A

VIOLATION OF STaTE PROMPT ARRAIGNMENT STAT-

UTES, THUS THE Post-ARRAIGNMENT RiGutT To Coun-

SEL IssuE Was REACHED ONLY BEcaAusE IT Was

NECESSARY For A COMPANION CASE?

By ANy REASONABLE STANDARD, CAN THE STATE

ESTABLISH THAT MERE MIRANDA ADVICE, GIVEN

UNDER THE COERCIVE CIRCUMSTANCES OF THis CASE,

Was SUFFICIENT To ENABLE RESPONDENT JACKSON To

UNDERSTANDINGLY WAIVE His Ricuts To CouNsSEL

GUARANTEED By THE FIFTH AND SIXTH AMENDMENTS

To THe UNITED StaTES CONSTITUTION?

TABLE OF CONTENTS

Page

ELE ETE OT iv

CONSTITUTIONAL PROVISIONS INVOLVED ............ 1

COUNTER-STATEMENT OF THE CASE ..............-- 1

SUMMARY OF ARGUMENT. .........cccccccccccccccss 17

ARGUMENTSs:

I. CERTIORARI Was IMPROVIDENTLY GRANTED BE-

CAUSE THE MICHIGAN SUPREME CouRT’S JUDG- ©

MENT REVERSING RESPONDENT'S CONVICTION

Was Basep ON ADEQUATE AND INDEPENDENT

STaTE GROUNDS, I1.E£., A VIOLATION OF STATE

Prompt ARRAIGNMENT STATUTES, THUS THE

Post-ARRAIGNMENT RiGHT To CouNSEL ISSUE

Was REACHED ONLY BECAUSE IT Was NECEs-

SARY For A COMPANION CASE ..............-. 18

II. By ANy REASONABLE STANDARD, THE STATE

CANNOT ESTABLISH THAT MERE M/RANDA ApD-

VICE, GIVEN UNDER THE COERCIVE CIRCUM-

STANCES OF Tus CasE, Was SUFFICIENT To EN-

ABLE RESPONDENT JACKSON To UNDERSTAND-

INGLY WaIvE His Ricuts To CouNSEL GUARAN-

TEED By THE FIFTH AND SIXTH AMENDMENTS To

THE UNITED STATES CONSTITUTION ........... 22

A. Police Tactics In Robert Jackson’s Case ..... 22

B. The Right To Counsel For In-Custody Police

i tr eee ab ee ee aheah ag eee ee es’ 29

C. Waiver Of Constitutional Right To Counsel

DT SUbec cas seus Oae6e60yedesceseees 34

D. The Prosecution’s Burden To Prove A Post-Ar-

raignment Waiver Of Counsel During Police In-

te tion Is Substantially Greater Than A

Pre- ignment Waiver Because An Under-

standi aiver At This Stage Is Extremely

PUR a oi een pans oo.Gh0000800< 0 36

E. Where Respondent Jackson Gave Seemingly

Inconsistent Responses To Questions Whether

He Wanted Counsel At Post-Arraignment Po-

lice In tion, There Was Not An Effective

Waiver Of His Fifth Amendment Right To

Counsel Under The Totality Of The Circum-

RE ES A a a ne 39

Table of Contents Continued

F. The Police Interrogation Practices In Robert

Jackson's Case Demonstrate That An Accused’s

heats chy arenes Constitutional Rights

Should Be Protected By A Prophylactic Rule 41

G. The Facts And Circumstances Of This Case Do

Not Establish A Waiver Of The Sixth Amend-

ment Right To Counsel At Post-Arraignment

SEE Ciivbsvcdpncdténeerdeccnese ss 47

COURIC SIGREET BP IIs go cc cccccccccocccccccccss 49

TABLE OF AUTHORITIES

Page

CONSTITUTIONS:

oF NG ee passim

Mich. Const. 1963, art. 1, §§ 17, 20................... 20

Mich. Const. 1908, art. 2, $16..........ccccccccccccs 20

STATUTES:

ss PU ID TDD ccc cccccccnccccccseces 20

ns cn ccc cccccoccuccenctee 20

CASEs:

Blasingame v. Estelle, 604 F.2d 893 (CA. 5, 1979) ..... 37

Bram v. United States, 168 U.S. 532; 18 S.Ct. 183; 42

Na ie a 25, 46

Brewer v. Williams, 430 U.S. 387; 97 S.Ct. 1232; 51

L.Ed.2d 424 (1977). Died Suedasuehs bbe cebu passim

Burger v. United States, 295 U.S. 78, 88; 55 S.Ct. 629; 79

L.Ed.2d 1314 (1935) Ci Uinta whab hada ebewe cee o ke 31

Coleman v. Alabama, 399 U.S. 1; 90 S.Ct. 1999; 26

eg re See ie A 30

Edwards v. Arizona, 451 U.S. 477; 101 S.Ct. 1880; 68

SCE IDI IIS 32

Escobedo v. Illinois, 378 U.S. 478; 84 S.Ct. 1758; 12

“FRASER Rrra 23, 33, 45

Estelle v. Smith, 451 U.S. 454; 101 S.Ct. 1866; 68 L.Ed.2d

EE RR CaO 30

Fare v. Michael C., 442 U.S. 707; 99 S.Ct. 2560; 61

L.Ed.2d 197 (1979). PP ye AE RS 30, 34

Faretta v. California, 422 U.S. 806; 95 S.Ct. 2525; 45

L.Ed.2d BRIE ea ae a 18, 34, 35, 41

Flagg v. People, 40 Mich. RR Ra les 24

Gideon v. Wainwright, 372 U.S. 335; 83 S.Ct. 792, 9

A i ila a i ot a 30

Johnson v. United States, 333 U.S. 10; 68 S.Ct. 367; 92

Nee Ns ir6c's <ossb-4 bb Sins tt ae ke x 41

Johnson v. Zerbst, 304 U.S. 458; 58 S.Ct. 1019; 82 L.Ed.

cb ebcthenctiacedaticdhcuatchucen: 34

Kirby v. Illinois, 406 U.S. 682; 92 S.Ct. 1877; 32 L.Ed.2d

Ph culsccvetatchdesaudiavdaewedes 33, 42, 45

Table of Authorities Continued

Page

— me York, 293 U.S. 52; 55 S.Ct. 16; 79 L.Ed. 191

Mallory v. United States, 354 U.S. 499, 450-451 (1957). 27

Massiah v. United States, 377 U.S. 201; 84 S.Ct. 1199; 12

Re, 2k Wc 6 be vcactnchs caunenes 30, 34

McNabb v. United States, 318 U.S. 332; 63 S.Ct. 608; 87

i i a on 605s 00nsoe eh uteaenwe ounes 20, 27

Michigan v. —_.- U.S. ——; 103 S.Ct. 3469; 77

iL. Ed.2d 120 (1983) States a aay ankek dual aii BARR a 22

ee Mosley, 423 U.S. 96; 96S.Ct. 321;46 L.Ed.2d

te ie cane d hens bene sasReES 38, 47, 48

Miranda v. Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16

ns. «cee anehteabenneeas passim

North Carolina v. Butler, 441 U.S. 369; 99 S.Ct. 1755; 60

I 34, 35

People v. Anderson, 389 Mich. 155; 205 N.W.2d 461(1973) 45

People v. Bladel and Jackson, 421 Mich. 39; 365 N.W.2d

PPR CS lcaducuctedesccccccescecessnsces passim

People v. Rudy Bladel, Mich. S.Ct. No. 69749......... 21

People v. Conte, 421 Mich. 704; 365 N.W.2d 648 (1984).. 24

People v. Cunni — ham, 424 N. Y.S.2d 421; 49 N. Y.2d 203;

PAS N.E.2d cst vedelvucsabduwestnesss

People v. Farmer, 380 Mich. 198; 156 N.W.2d 504 (1968) 20

People v. Gonyea, 421 Mich. 462; 365 N.W.2d 136 (1984) 17

People v. Hamilton, 359 Mich. 410; 102 N.W.2d 738

inch inbblditind hth sk coy eer avanasae < 20, 28

People v. Harper, 365 Mich. 494, 502-503; 113 N.W.2d 808

i. Lhe neat, sein dh bechendsenanse 20

People v. Robert Jackson, 114 Mich. App. 649; 319 N. W.2d

eo ict co cacdemdbabdsemene 16, 37

Powell v. Alabama, 287 U.S. 45, 60-69; 53 S.Ct. 55; 77

Red RE odo dg sceuaieuseebs odes 30, 32

Schneckloth v. Bustamonte, 412 U.S. 218; 93 S.Ct. 2041;

I 6 i ou ckin'c coeuescuneacee 34, 36

Smith v. Illinois, 469 U.S. ——; 105 S.Ct. 490; 83

EL, Va du ceicccseuebecsdebesceses 40

Solem v. Stumes, ___. U.S. ——; 104 S.Ct. 1338; 79

INS so iG co Ve dk eeu aeee ss ccbeuse 35

State v. Wyer, 320 S.E.2d 92 (W. Va. 1984)............. 38

Table of Authorities Continued

United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568; 37

I as 6 a i cee eee va 30

United States v. Clements, 713 F.2d 1030 (CA. 4,

CCM eet ce eu hab eesebuuieseciéevss 37, 38

United States v. Durham, 475 F.2d 208 (CA 7, (1973)...

United States v. Henry, 447 U.S. 264; 100 S.Ct. 2183; 65

I SE ee ee 29, 33

United States v. Marshall, 488 F.2d 1169 (CA. 9, 1973).

United States v. Mohabir, 624 F.2d 1140 (CA. 2, 1980)...

United States v. Satterfield, 417 F.Supp. 293 (S.D. N.Y.),

aff'd, 558 F.2d 655 (CA. 2, 1976)................. 37

Von Moltke v. Gillies, 332 U.S. 708; 68 S.Ct. 316; 92 L.Ed.

at ee re ea 18, 35, 36

ae Se v. United States, 371 U.S. 471; 83 S.Ct. 407; 9

i ig RE aca AB iid i I 21

SECONDARY AUTHORITIES:

Grano, Rhode Island v. Innis: A Need to Reconsider the

Constitutional Premises Underlying the Law of

Confessions, 17 Amer. Crim. L.R. 1, 15 (1979) .... 48

—s a _ Criminal Interrogation and Confessions ae

Kamisar, Police Interrogation and Confessions in

Choper, Kamisar and Tribe, The Supreme Court:

Trends and Developments, 1979-80, at p. 98 (1981). 43

Kassin, S.M. & Wrightman, LS., Coerced Confessions,

Judicial Instruction, and Mock Juror Verdicts, Jour-

nal of Applied Social Psychology, 1981, 11, 6, pp.

PG UAL Site etwand el cdcdt due Cex vdbienee cs 46

Seid, Schizoid 7 alge Supreme coe — oot In-

adequate Adequate State Grou ory: Michigan

v. Long, 18 Creighton L.R. 1 (1984).............. 22

Zimbardo P.G., The Psychology of Police Confessions,

Psychology Today, 1967, June 1(2), 17-27.......... 25

CONSTITUTIONAL PROVISION INVOLVED

Constitution of the United States, Amendments V and VI:

“No persan . . . shall be 7. in any criminal case to

be a witness against himself. .

“In all criminal prosecutions, the accused shall enjoy the

ys. anil’ . to ba the Assistance of Counsel for his

efence.”

COUNTER-STATEMENT OF CASE

_ During the early morning hours of July 12, 1979 Rothbe

Elwood Perry was shot several times in his home in suburban

Livonia, Michigan. Investigation at the scene showed that

someone had entered the garage through an unlocked door and

then pried open a door leading inside the house. On Saturday,

July 28, 1979, following several weeks of investigation, Livonia

police arrested the deceased’s wife Mildred Perry, and Charles

(Chare) Knight, a young black man from Detroit. (WHT

43-44), !

Ms. Perry promptly retained an attorney and was never

successfully interrogated by police. (WHT 58). By Monday,

July 30, 1979, Chare Knight, a young black man from Detroit,

had confessed. Knight told police that he had been solicited by

Ms. Perry to kill her husband. Knight, in turn, had contacted

Respondent Robert Jackson. According to Knight, Jackson

later told him that he and another man had broken into the

Perry home and shot Mr. Perry. Following Knight's confession,

Sgt. Ericson engaged police machinery to pick up Respondent

Jackson. (WHT 45-49).

Detroit Police arrested Robert Jackson and a codefendant,

Michael White, on the night of July 40, 1979. Interrogation

1“WHT denotes Walker Hearing Transcript. Prior to trial, a

Walker (374 Mich. 331 (1965)] hearing was held to test the

admissibility of the statements made by Robert Jackson and his code-

fendant Michael White. This hearir lasted seven (7) days. The

prosecution presented eight police witnesses and both defendants

testified.

sessions began that night and were continued by the Livonia

Police over the next three days. (WHT 49-50, 97, 448). During

that time the police obtained seven statements from Jackson.

All seven statements were introduced at trial. According to the

prosecution witnesses at the Walker Hearing, events occurred

according to the following outline:

Thursday, July 12, 1979

Rothbe Perry killed

Saturday, July 28, 1979

Knight confessed, naming Respondent Robert Jack-

son as principal

Jackson and Michael White arrested by Detroit Police

Tuesday, July 31, 1979

2:00 p.m. Jackson, White transported from Detroit

Police Headquarters to Livonia Police

Headquarters

3:30 p.m. Jackson statement I (oral) to Sgt. Ericson,

Sgt. Garrison

5:52 p.m. Jackson statement II (tape) to Sgt. Eric-

son, Sgt. Garrison, Sgt. Hoff

6:30 p.m. Sgt. Ericson informs codefendant Knight

Jackson's statement

8:48 p.m. Jackson statement III (tape 2) to Sgt. Eric-

son, Sgt. Garrison, Sgt. Hoff

11:00 p.m. Sgt. Ericson informs Jackson and Knight of

need to take a polygraph exam to deter-

mine “who was being truthful”

Wednesday, August 1, 1979

9:30 a.m. Sgt. Ericson begins work on-warrant request

10:00 a.m. Jackson polygraph exam

10:30 a.m. Jackson statement I V (oral) to polygrapher

11:00 a.m. Jackson statement V (oral) to Sgt. Hoff

12:30 p.m. Jackson statement VI (written) to Sgt. Hoff

1:30 p.m. Interrogation of codefendant Michael

White by Sgt. Hoff, Sgt. Garrison, Lt.

Campbell; Jackson present for part

4:30 p.m. Arraignment, Arrest Warrant issued, 16th

District Court, Jackson, Perry, White,

Knight present and request counsel

Thursday, August 2, 1979

10:24 a.m. Jackson statement VII (tape 3) to Sgt.

Hoff, Sgt. Garrison

Testimony of Police Regarding

Tuesday, July 31, 1979

The interrogation sessions at the Livonia Police Station were

conducted by Sergeant Richard Ericson, Sergeant Shirley

Garrison, and Sergeant William Hoff. All were veteran officers

with more than 20 years of police experience. Robert Jackson, a

26 year old black man, had dropped out of his Detroit high

school in the 11th grade.

Sgt. Ericson was the first prosecution witness to describe

the interrogation sessions. Sgt. Ericson ar ! Sgt. Garrison first

picked up Robert Jackson and Michael White at Detroit Police

Headquarters. Sgt. Ericson assumed they had already been

questioned by Detroit Police (WHT 97). He testified that he

gave Miranda advice in the garage, (WHT 51-52), and pro-

ceeded directly to Livonia, but there was no questioning en

route. (WHT 98). Sgt. Ericson suggested “that they not make

any comment at this time.” (WHT 140).

Jackson and White were next taken into the booking room of

the Livonia Police Station. Chare Knight was in the booking

room when they arrived. (WHT 143-144). White was left in the

booking area and Jackson was taken to the “conference” room

in the basement of the police station. (WHT 51).

According to Sgt. Ericson, the first Livonia interrogation of

Jackson began at about 3:00 p.m. and ended at about 4:20 p.m.

(WHT 99, 115). They did not use a tape recorder but instead

took notes. (WHT 113-114). Both Sgt. Ericson and Sgt. Gar-

rison were present when Sgt. Ericson again recited Miranda

advice. (WHT 53). Both officers then alternately “explained

various aspects of the case in an effort to demonstrate to him

why he was now incarcerated.” (WHT 55). They told him that

Chare Knight had confessed to shooting Mr. Perry and had

implicated him. Sgt. Ericson did not consider this questioning,

instead “we were telling him. . . what we felt the case was

against him. (WHT 100). Sgt. Ericson testified that Jackson

never asked if he would be given leniency or a break, and only

after arraignment did he tell Jackson that he would present the

case to the prosecutur for a decision with one option being

second degree murder. (WHT 128-130).

Sgt. Garrison, however, testified that at the first interroga-

tion session Jackson raised the issue of a deal so that he

wouldn’t go to jail. Garrison felt Jackson “wanted to plead to

anything if he could get a break too.” (WHT 234-237). Accord-

ing to Sgt. Garrison, after telling him the difference in penalty

between First and Second Degree Murder, they also told Jack-

son:

“Later on you may obtain an attorney and whatever the

attorney and the prosecutor works out between each

other, then it is not in our hands, we can do nothing more

than the First Degree.” (J.A. 107).2

By about 3:30 p.m. on the 31st, Robert Jackson began

“giving” a statment. (WHT 100). In this first statement Jack-

son, in the manner of facts police suggested, stated that Knight

was the shooter and admitted accompanying Knight to the

Perry home. (WHT 55-57). However, the police knew that

Knight had accused Jackson of the shooting and had denied

being present when the shooting occurred. (WHT 45-47, 61).

Knight also testified to this version at Jackson's preliminary

examination.

2“J.A.” denotes Joint Appendix.

At 5:02 p.m. interrogation? resumed and Jackson signed a

form waiving his rights under Miranda. (WHT 71). Sgt. Eric-

son testified that they began tape recording Jackson’s second

statement at 5:52 p.m. and finished at 6:27 p.m. (WHT 115-116).

This first taped statement was “basically the same facts” given

by Jackson in his first oral statement. (WHT 57-58).

Shortly after 6:30 p.m. on July 31, Sgt. Ericson confronted

Chare Knight with Jackson’s statement. Knight vehemently

denied Jackson’s version. (WHT 59). When the police later (8:48

p.m.—9:40 p.m.) returned to Jackson for a third (second tape

recorded) statement, he gave “fundamentally the same” state-

ment, again naming codefendant Knight as the shooter. (WHT

60). Then, at about 11 pm. Sgt. Ericson “informed” both

Jackson and Knight “that I was going to request that they

submit to a polygraph examination . . . to assist me in deter-

mining who was being truthful.” (WHT 62). Sgt. Ericson testi-

fied that he also told Jackson that he would be arraigned the

next day and that afterwards the prosecutor and his court

appointed attorney would “discuss the case”. (J.A. 14).

Sgt. William Hoff testified that the Livonia Police had suffi-

cient evidence to arrest Robert Jackson when they took

custody of him from the Detroit Police on July 31st. Sgt. Hoff

also testified that they “could have sought a warrant that

[Tuesday] evening. However, . . . the Prosecutor's Office was

closed.” (J.A. 122-124). Hoff agreed that if the warrant had

been issued on Wednesday morning, August Ist, Jackson could

have been arraigned that morning, except the police needed to

take him to a polygraph test. (J.A. 125).

Wednesday Morning, August 1, 1979

At about 9:30 a.m., Sgt. Ericson began work on the warrant

request for Robert Jackson. (WHT 64-65). In the meantime,

3 Sgt. William Hoff testified that he had notes of conversations or

interviews of Jackson at 4:45 p.m., 6:37 p.m., 7:45 p.m. and 8:01 p.m.

on July 31st. These conversations were not tape recorded. (WHT

337).

from 9 a.m. until about 12:30 p.m., Sgt. Hoff accompanied

Jackson to the State Police Post for a polygraph exam. (WHT

343-344). Lt. Chester Romatowski, the polygraph operator,

testified that he first gave Miranda advice. (WHT 373). At the

conclusion of the examination, when Lt. Romatowski told Jack-

son that he was lying, Jackson admitted that he was the shooter

and that codefendent Michael White had accompanied him to

the Perry home. Lt. Romatowski told Jackson he should tell

this to the Livonia police. (WHT 376). By about noon that day,

Jackson also confessed orally and in writing to Sgt. Hoff. (WHT

308-309).

Wednesday Afternoon, August 1, 1979

At about 1:50 p.m. Sgt. Hoff and Sgt. Garrison began an

interrogation session with codefendant Michael White. (WHT

312). Robert Jackson was brought into the interrogation room

to help convince White that he should “cooperate” by making a

statement. (IT 21-26).4 Nevertheless, White repeatedly denied

any involvement and was returned to the lock-up at about 3:30

p.m. However, by 4:00 p.m. just as he was being sent to District

Court for arraignment, White asked to see Sgt. Hoff and

admitted that he had been with Jackson when the shooting

occurred. (WHT 313-314).

Sgt. Hoff and Sgt. Garrison used a variety of techniques to

convince White to tell them where the murder gun was. As the

tape recording reveals, Sgt. Hoff was the calm, soft-spoken and

reasonable interrogator while Sgt. Garrison was the tough-

talking, impatient interrogator. As they had with Jackson, they

began by repeatedly telling White the evidence they had

against him. (J.A. 150-155). At the same time they offered a

deal, the police repeatedly threatened White with first degree

4“IT” denotes Interrogation Transcript for the Wednesday after-

noon session involving primarily codefendant Michael White. A por-

tion of this transcript is included in the Joint Appendix, pp. 144-164.

murder, high bond and even tearing up his house.® (J.A.

149-153; IT 20-22, 30-32, 34-35). These police officers advised

White that if he asked for an attorney he would go to trial on

first degree murder just like Ms. Perry. (J.A. 157-163). Accord-

ing to the police:

“GARRISON: Now I think you need a brick to hit you

against a wall to realize that your 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 police. I can tell you

that right now. Don’t talk to the police. But, the attorney

doesn’t go to jail, does he?

“HOFF: You know what the attorney does when you |

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.”

(J.A. 157-158).

5 The police threats are too numerous to list completely, however, a

few examples include:

“You’re involved ina murder. . . you’re gonna be going to court.

The only thing that remains is whether or not you decide to tell

us about it, cooperate, see what kind of deal we can get worked

out for you.” (J.A. 153).

* * *

“ . . the bond will be so high that you won’t be able to get out. It

doesn’t have to be .... The only thing we don’t know ...

whether we’re gonna let you plead to something less, or. . nail

you all the way up murder in first degree.” (J.A. 156).

* « *

“If pe continue this position, there’s only one way we can deal

with you and that’s go to trial. We’re not gonna say, hey, we'll ae

aT idk White the same deal that we gave Jackson and Charley.”

* * *«

“If you want to go up on murder one, life imprisonment, that’s up

to you. Now we'll work a deal and plead to something less and get

two years, get out, that’s your business. It’s your choice.” (IT 20).

* * *

“That guy who j t knocked on the door? You know where he’s

ing right now?.. . a a search warrant. He's gonna tear

Froutl house apart.” (IT 24).

The police also placed time pressure on White, saying among

other things, “the train is pulling out [of] the station”, and

‘{tlomorrow is gonna be too late.” (J.A. 160-163; IT 12, 18).

Other techniques included suggesting White’s stomach would

relax if he talked®, (J.A. 154), and arguing that his parents,

teachers, ministers and judges would want him to cooperate

and tell the truth. (IT 13-14, 31).

During their interrogation of codefendant Michael White,

Sgt. Hoff and Sgt. Garrison repeatedly stated that they had

already made a “deal” with Robert Jackson.

GARRISON: We have almost sixty witnesses right now

who will be testifying. And one of those witnesses is going

to Bobby [Jackson].” (J.A. 155)

* * *

“HOFF: . . . Charlie, he’s a we’re gonna let

him off with somethin’ easy. And even the guy that did the

shooting, Bobby Jackson.” (J.A. 160).

* * *

“GARRISON: Bobey is not gonna take this whole load

himself. Murder on is a lifetime and he knows that. He

threw the damn dice out there, he’s gambling. Charlie's

gambling, that the Prosecutor's office, because of their

sincere and honest testimony, that they'll be given some

kind of consideration.

“HOFF: We’ve already worked with the Prosecutor on

that and come up with a few things . . . we’ve made a few

deals there . . . Bobby is not going to be going for Murder

One. . .” (IT 13).

* * *

“HOFF: And the police are gonna continue to treat him

Jackson] fairly. He’s gonna, he’s already got himself. . .

he’s gonna be ch on murder one. Initially he’ll be on

the warrant but that’s gonna be worked out.

6 Both Sgt. Garrison and Sgt. Hoff acknowledged that White had

complained of stomach pains the previous day. (WHT 238, 325).

“GARRISON: At the proper time he gets an attorney, a

deal will be made at that time for his testimony that he will

be allowed to plea to murder two. Then what's gonna

happen is that he’ll plead to murder two, he won't be

sentenced until after the trial, after your trial is over with,

and Mrs. Millies’ trial is over with. After he testifies, the

percvny «Be and honest testimony, then the judge will sen-

tence him... .

“HOFF: He's gonna plead to a lessor and not be sentenced

until the whole thing is over.” (IT 18).

* * *

“HOFF: All we need is the testimony of Charlie Knight

and Jackson and we’ve got a super case against her [Ms.

ene We've got a case against them but they’re gonna

plead ahead of time. ... if you continue this position,

there’s only one way we can deal with you and that’s go to

trial. We’re not gonna say, hey, we'll give Michael White

the same deal that we gave Jackson and Charley.” (IT 19).

After interrogating White for nearly an hour, Sgt. Hoff and

Sgt. Garrison brought Robert Jackson into the interrogation

room to persuade White to talk. (IT 21). Sgt. Hoff and Sgt.

Garrison continued to outline their negotiations with Jackson:

GARRISON: [H]e [White] not only knows that you’re

[Jackson] gonna be testifying . . . ah, but the other man

[Knight] is goin to be testifying, because how they'll do it,

they'll take a plea of guilty probably to second degree

murder and then just hold your sentencing up for honest

testimony.

“HOFF:... ay ne do some time, but you can come

out with a little bit of time, as opposed to 15, 20 or 25 years

on a first degree . . . You know, this guy [Jackson] didn’t

come right in and spill the whole thing, . . .

“GARRISON: No” (IT 22).

* * *

“HOFF: You don’t have to say nothing. We don’t need that

right now. But I’m cpg tate. ll go along and play

like he [Jackson] is, ike Charlie is. . . .

“WHITE: Play ball? What kind of ball?

“HOFF: Well, trying to work yourself a deal, because

your....

“WHITE: What’s that.

“HOFF: A plea to second degree, and —_ somethin’

even less. I can’t say anything less but at least a plea to

second degree. Maybe even less. That’s up to the pros-

ecutor. How much time... .

“JACKSON: (inaudible) And how cooperative, you know,

that we be. ...

“HOFF: How about... .

“JACKSON: That's to jam her, that’s what they want, I

keep telling you. .. .

a For testimony, we need testimony to get her

good.

“JACKSON: This is what they’re getting as far as we’re

concerned.” (IT 24-25).

At the Walker hearing Sgt. Hoff tesiified that he had no

knowledge of anyone on July 31st mentioning the possibility of

anything less than First Degree Murder for Jackson. (WHT

341). Hoff testified that when Jackson raised the issue of a

reduced plea on the return trip following the polygraph exam-

ination on August Ist, Hoff told him “it was up to the pros-

ecutor, but that if he testified truthfully, that there may be

something that could be worked out for him.” (WHT 342).

Later, on redirect examination, the prosecutor asked Sgt. Hoff

to explain his comments during the White interrogation about

a deal with Jackson. Hoff admitted telling White something

“might” be worked out as with Jackson and Knight, but added

that he told White it would be up to the prosecutor. Hoff denied

he ever indicated that he had any authority to set bond. (J.A.

131-135). Sgt Hoff also testified that everything said during the

interrogation of Michael White was “basically” true. (J.A.

129-130).

Sgt. Garrison testified that “nothing was ever said about the

cooperation. Right from the start we are unable to do any-

thing.” (J.A. 112). According to Garrison, Jackson and White

were merely told about the penalty for First Degree Murder.

(J.A. 113). Garrison specifically denied telling White that the

police could help them if he cooperated. (J.A. 117-121).

According to the transcript of the tape recording of the

interrogation of Michael White, the subject of how cooperation

with the police could help an accused was discussed many

times:

“HOFF: [’ll tell ya, the only thing we don’t know what

we’re gonna do. We know that we’re going to charge you

with murder one. We know that your —_ get arraigned

today. We know that the bond will probably be so high that

you won't be able to get out. It doesn’t have to be, but it’s

gonna be high. The only thing we don’t know at this point

is how we’re gonna treat you in a couple of weeks down the

line when we get down to the circuit court, whether we’re

gonna let _ plead to something less, or whether we’re

gonna stick with our evidence and nail you all the way up

murder in first degree.” (J.A. 156).

* * *

“HOFF: You are a hardened criminal, if you're sittin’

there denyin’. Listen, let’s put yourself in the position of

the judge, okay? Your a judge. You get a guy up before

ya. . . . He's cooperative with the police he’s straightened

it out. Told his side of it. . . . The ones that get probation,

or get the light sentences, are the ones that cooperate and

show a little more. You know, after a man’s found guilty or

pleads guilty, there are a lot of things that happen after

that. There's a lot of evaluations that are done, presentence

evaluation reports. .. . Well, the police input into that

report is ve ap nies . . ., if the police can say some-

thing favorable about the guy, say, ‘Hey, he did cooper-

ate... .” When the judge reads that, it carries a lot of

weight because policemen aren’t noted for making favor-

able comments about too may people who are defend-

ants...” (IT 14-15).

* * *

“HOFF: Let me tell you somethin’ right now. You know, I

can’t go out on a limb and promise you somethin’ that I

can’t deliver. Do you understand that? The only one who

can really promise you ——s or can work somethin’ out

for you is the prosecutor. We’ve given you a little bit here.

He can do more for you that we can. . . . All I can tell you is

that I’ll do everything I can to help you can out of this. . . .

We'll do everything we can.” (IT 27).

* * *

“HOFF: ... everybody doesn’t have to get the same

sentence. You plead to the same thing he does. He can do

more time than you. . . . Tney’re gonna look at your, your

background, remember I already told you about the eval-

uations? They’re gonna look at that.” (IT 29).

* *

“GARRISON:. . . Now, I'll tell you what Charlie Knight,

when he told us that he didn’t go to the house. . . . We told

him, hey second degree, blah, blah, blah just like we said

here. But listen if we find out you’re lying, the deal if off.

an = is off. O.K., that the same situation here with you.”

* * *

“CAMPBELL: They [police] can say, $10,000 bond or no

ane. They can say that. But they can’t release you.” (IT

* * x

“CAMPBELL: Well, the prosecutor don’t know but he

(Sgt. Hoff] can promise you more than they can. O.K. In

other words, here, when the down for the warrant,

they say to the prosecutor, ‘this is want I want’, O.K.? The

prosecutor’d Say, ‘. - - you! What are you going for Two on

this guy for? We want one.’ And they'll say, “Hey, the man

helpin’ us, the man wasn’t in the house.’ Digit?. . . He say,

‘Well, that what you really want?’ ‘Yeah, that’s what we

want.’ ‘O.K., then your got it.’ But if a Ragone in there

and says, This guy here, this guy said this guy was here

and we can’t prove it one way or another. But, this man is

going to testify that he was there. We can’t prove one way,

we can’t even, he hasn’t even said nothing’. he’s done is

jammed us from the word go. And so I guess we’re going to

go One.’ (IT 45-46)

At 4:30 p.m. Robert Jackson and codefendants White, Perry

and Knight were arraigned at the 16th District Court in

Livonia. (J.A. 2-3). Mrs. Perry was represented by an attorney.

(J.A. 3, 166). The magistrate read the charges and asked for a

plea from the defendants. (J.A. 165-168). The magistrate gave

no advice and simply recommended the appointment of counsel

pursuant to Jackson’s acknowledgment of his written affidavit

requesting counsel. (J.A. 168).

The next morning, at 10:24 a.m., Thursday, August 2, 1979,

Jackson made a tape recorded confession admitting that he

shot Elwood Perry. (J.A. 31-79). Sgt. Hoff began this last

session as follows:

“Q

“A

“Q

“A

“Q

“A

“Q

“A

Alright now Robert over the last day and a half or

so we’ve talked with you on prior occassions and

we’ve advised you of your constitutional rights, is

that correct?

Yes, it is.

And at that time you indicated that you did under-

stand your rights and you at that time elected to

waive these rights and answer certain questions,

is that correct!

Yes it is.

Okay I’m going to once go through your

rights and ask if you do te tand them now, I’ll

read them. You do have a right to remain silent,

not make any statements or answers nor incrimi-

nate yourself in any manner whatsoever. Anything

you say can and will be used against you in a court

or courts of law for the offense of offenses con-

cerning which any statement is made. Do you

understand what I’ve read this far?

Yes I do.

Okay continuing that you can hire a lawyer of your

own choice to be present and advise you before and

during any questioning and that if you are unable

to hire a mot you can request and receive

appointment of a lawyer by proper authority with-

out cost or charge to you to be present and advise

you before and during any questioning. Do you

understand them thus far?

Yes I do.

“Q And second, or continuing that you can refuse to

answer any questions or stop giving any statement

any time you want to and that no law enforcement

officer can prompt you as to what to say during this

questioning nor write you a statement for you

unless you choose for him to do so. Now do you

understand these rights as I’ve read them?

“A Yes I do.

“Q Now Robert just for the record can you tell us a

little about your educational background?

“A Sir I went to McKenzie High School in Detroit, I

went to the 11th grade and I had some vocational

training. I took a vocational course (inaudible) and

basically that’s

“Q Okay now a aware of course that I’m a police

officer and these officers are also police officers

with the Livonia Police Department, is that right?

“A Yes sir.

“Q Now knowing and understanding your rights ah do

you at this time wish to answer any questions that

we might ask of you?

“A Yes lam.” (J.A. 31-33).

Testimony of Robert Jackson

Respondent Robert Jackson also testified at the Walker

hearing. Jackson stated that he was first arrested by Detroit

Police on July 30th and questioned three or four times. (J.A.

96). The Livonia Police took him into custody at about 1:00 p.m.

the next day. (WHT 439-440). According to Jackson, he was not

advised of his constitutional rights until the first tape recorded

statement was made. (J.A. 87-89).

Jackson testified that he did not answer the police questions

right away. (J.A. 88). After the police had told him they had

enought evidence to convict him on Murder One, they indicated

that they really wanted Mrs. Perry. Jackson asked for an

attorney, but Sgt. Ericson and Sgt. Garrison told him that an

attorney could not help him at that time. They told him that if

he cooperated by going along with codefendant Knight he

would be offered Second Degree Murder with consideration of

something less. (J.A. 89-92).

Robert Jackson testified that the two police officers kept

“questioning and badgering” him with words. Although he was

not physically harmed, at one time while in the holding pen,

Jackson heard someone hollering and screaming which caused

him to fear that he would be beaten. (J.A. 92-93). Jackson

testified that he made the first tape recorded statement

because of the threats and promises of Sgt. Ericson and Sgt.

Garrison. As before, they told him he was foolish not to cooper-

ate in an effort to get Mrs. Perry. They also indicated that he

could expect their help with the probation officer. (J. A. 97-98).

Jackson did not ask for an attorney at this session because the

usefulness of an attorney had been “explained away” by the

police. (J.A. 101-102).

Robert Jackson's first contact with Sgt. Hoff was during the

evening of July 31st when he was told that he had to take the

polygraph if he was to get Second Degree with consideration of

something lesser. (WHT 454-455). Sgt. Hoff repeated the dis-

cussion regarding his cooperation during their trip to the state

police pest the next morning. He stated that anything less than

Second Degree would have to come from the prosecutor. (WHT

458). According to Jackson, even the prosecutor introduced

himself just prior to arraignment and said he would be looking

for Second Degree. (WHT 459-460).

Robert Jackson met Lt. Romatowski at the state police post

on August ist. (WHT 460). After the polygraph exam, Lt.

Romatowski told him he had failed. Lt. Romatowski also told

him “it is a shame, Mr. Jackson. . . by refusing. . . to make a

statement that you are really hurting your own chances for

Second Degree Murder. . . because you are going to go up for

life if you don’t. (WHT 461). A few minutes later, Jackson met

with Sgt. Hoff. Again, Sgt. Hoff mentioned the possible deal.

Jackson then told him that he was the shooter. (WHT 463).

Jackson testified that the day after his arraignment he

agreed to make a third taped statement, this time to confirm

himself as the shooter. (WHT 465). According to Jackson he had

wanted to describe the deal on tape, (J.A. 31), but police had

told him “to keep it in a mild nature.” (WHT 466-467).

Defense counsel asked that the challenged statements be

excluded on grounds that they were obtained as a result of (1)

promises of leniency, (2) psychological coercion, (3) delay in

arraignment for purposes of interrogation, and (4) a denial of

the right to counsel. (WHT 650-687). The trial judge, seriatim,

ruled each of Robert Jackson's statements admissible. The trial

judge stated that Jackson was advised of his Miranda rights

before each statement and that the police had made no

improper promises or threats. Further, the trial judge did not

believe that Jackson had requested counsel nor did he believe

that the statements were the result of any illegal delay in

arraignment. (J.A. 15-24, 136-137). However, the judge sup-

pressed codefendant White's statements. The trial judge found

that White had made requests for counsel which were ignored

and, in addition, the police had improperly offered plea bar-

gains. (WHT 715-716).

All of Robert Jackson’s statements were used at trial. Chare

Knight also testified for the prosecution in return for a 10-15

year sentence for second degree murder. Jackson was con-

victed of second degree murder and conspiracy to commit

second degree murder on February 4, 1980. He was sentenced

to life in prison.

On appeal as of right, Robert Jackson asserted that he had

been denied his rights to due process and to counsel, guaran-

teed under the State and Federal Constitutions. Mich Const.

1963, art. 1, §§17, 20; U.S. Const. Ams. V, VI, XiV. The

Michigan Court of Appeals affirmed his conviction for second

degree murder, People v. Robert Jackson, 114 Mich. App. 649;

319 N.W.2d 613 (1982). The Court of Appeals upheld the trial

court’s findings of fact and agreed that the prosecution

“established a knowledgeable and voluntary waiver of defen-

dant’s right to counsel.” 114 Mich. App., at 656. Relying on

Blasingame v. Estelle, 604 F.2d 893 (CA 5, 1979), the Court

decided that “the circumstances surrounding defendant's

request for counsel show it to have been unrelated to the Fifth

Amendment right to confer with or have counsel present

before answering any questions.” 114 Mich. App., at 659. The

Court did not reach the Sixth Amendment question.

The Michigan Supreme Court granted discretionary leave to

appeal, 417 Mich. 885; 330 N.W.2d 846 (1983), and reversed.

421 Mich. 39; 365 N.W.2d 56 (1984). The Court ruled that

Jackson had not invoked his Fifth Amendment right to counsel.

The Court ruled that Jackson’s post-polygraph statements

were inadmissible because they were obtained while police

delayed arraignment for purposes of interrogation. 421 Mich..,

at 69-74. The Court also ruled that the post-arraignment state-

ment was inadmissible because Jackson was denied his right to

counsel. The Court's basis for this ruling was summarized as

follows:

“We have merely extended the Edwards/Paintman rule

by analogy to cases involving requests for counsel during

arraignment, on the basis of our interpretation of both the

Sixth Amendment right to counsel and its state constitu-

tional counte embodied in Const. 1963, art. 1, § 20.”

421 Mich., at 68.

SUMMARY OF ARGUMENT

I. Certiorari was improvidently granted because the Mich-

igan Supreme Court reversed Respondent Jackson's conviction

on adequate and independent state grounds. Specifically, that

Court found that the police had unlawfully delayed Respond-

ent’s arraignment in violation of State statutes and the State

Constitution.

II. Police interrogation is a critical stage of all criminal

proceedings. Fairness demands that there be some time in the

proceedings when counselless police interrogation ends. The

rule advocated by the State allows for the possibility of police

badgering at any time. Compare, People v. Gonyea, 421 Mich.

462; 365 N.W.2d 136 (1984) [police questioning in absence of

counsel immediately after sentencing]. Arraignment is well-

recognized as the formal initiation of adversary proceedings.

The right to counsel is indispensable to the fair administration

of our adversary system of criminal justice and formally

attaches at arraignment. Brewer v. Williams, 430 U.S. 387,

398; 97 S.Ct. 1232; 51 L.Ed.2d 424 (1977). Even well-meaning

police seeking to interrogate an accused cannot be relied upon

to adequately inform the accused of the value of counsel at post-

arraignment interrogation. The record in Respondent Jack-

son’s case clearly establishes that under any reasonable stan-

dard, Respondent did not make an understanding waiver of the

right to counsel. Without the assistance of counsel or formal

inquiry by a neutral magistrate, the likelihood of an under-

standing waiver of the right to counsel is remote. Therefore, an

accused's request for counsel at arraignment is at least an

ambiguous request for counsel at police interrogation. Log-

ically, it is a reouest for assistance of counsel against the

organized prosecutorial forces of the State in all forms and

forums. Fairness and the efficient administration of justice

would be promoted by a bright-line rule prohibiting counselless

interrogation after arraignment unless counsel is waived pur-

suant to consultation with counsel or judicial inquiry similar to

that required in Faretta v. California, 422 U.S. 806 (1975) and

Von Moltke v. Gillies, 332 U.S. 708, 723-724 (1948).

ARGUMENT

I. CERTIORARI WAS IMPROVIDENTLY GRANTED BE-

CAUSE THE MICHIGAN SUPREME COURT'S JUDG-

MENT REVERSING RESPONDENT'S CONVICTION

WAS BASED ON ADEQUATE AND INDEPENDENT

STATE GROUNDS, I.E., A VIOLATION OF STATE

PROMPT ARRAIGNMENT STATUTES, THUS THE

POST-ARRAIGNMENT RIGHT TO COUNSEL ISSUE

WAS REACHED ONLY BECAUSE IT WAS NECES-

SARY FOR A COMPA iON CASE.

At the very outset of the majority opinion of the Michigan

Supreme Court in Respondent Robert Jackson's case, Justice

Cavanagh wrote:

“The common issue presented in these appeals is whether

statements obtained after a defendant has requested

appointment of counsel at arraignment are admissible pur-

suant to y ogy les enunciated in Edwards v. Arizona,

451 U.S. 477; 101 S.Ct. 1880; 68 L.Ed.2d 378 (1981), and

People v. Paintman, 412 Mich. 518; 315 N. W.2d 418 (1982),

cert. denied 456 U.S. 995; 102 S.Ct. 2280; 73 L. Ed.2d 1292

(1982).” People v. Bladel and Jackson, 421 Mich. 39, 44;

365 N.W.2d 56 (1984).

Clearly the Michigan Supreme Court had granted discre-

tionary leave to appeal in these companion’ cases because they

were interested in the very same issue the United States

Supreme Court now wishes to consider. However, after first

deciding this common issue, the Michigan Supreme Court went

on to consider issues raised solely by Respondent Robert Jack-

son. One of these separate issues was decided in favor of Jack-

son purely as a matter of State law. Moreover, this issue was

dispositive of the case on appeal, independent of the issue this

Court now seeks to decide.

The Michigan Supreme Court ruled that the last four of

seven statements obtained by police should not have been

admitted into evidence in Respondent’s state trial. The first

three statements, in which Jackson admitted being present

when Knight shot Mr. Perry, were obtained on July 31, 1979,

the second day of Jackson’s incarceration. The next three state-

ments, in which Jackson admitted shooting Perry, were

obtained on August Ist after Jackson had taken a polygraph

exam. The last statement (Jackson as shooter) was obtained on

August 2nd after Jackson’s arraignment. It is apparent that all

of the last four statements were obtained as a result of police

tactics in delaying arraignment. In Part IV of their opinion, the

Michigan Supreme Court relied exclusively on State law to

suppress Respondent’s post-polygraph statements. The Court

stated:

7The Bladel and Jackson cases are totally separate cases with

nothing in common except a legal issue. The Bladel case arose from a

transaction in Jackson County and the Jackson case originated in

Wayne County.

“Although the police had sufficient probable cause to

obtain a warrant for defendant Jackson’s arrest as a result

of codefendant Knight’s statements, they did not do so.

Defendant was ‘arrested’ on the murder charges on Tues-

day, July 31, at 2 p.m. when he was turned over to the

Livonia police. Since defendant was arrested for a felony

without a warrant, the arresting officers were required to

bring him before a istrate for arraignment without

unnecessary delay. MCL 764.13; MSA 28.871(1); MCL

764.26; MSA 28.885;8 People v. Mallory, 421 Mich. 229,

238-239; 365 N.W.2d 673 (1984); fo v. White®, 392

Mich. 404, 424; 221 N.W.2d 357 (1974), cert. den. sub.

nom. Michigan v. White, 420 U.S. 912; 95 S.Ct. 835; 42

_L.Ed.2d (1974).” 421 Mich., at 69.

* * *

8“A peace officer who has arrested a person for a felony offense

without a warrant must without unnecessary delay, take the person

arrested before the most convenient magistrate of the county in

which the offense was committed, and must make before the magis-

trate a complaint, stating the offense for which the person was

arrested.” MCL 764.13; MSA 28.871(1).

“Every person charged with a felony shall, without unnecessary

delay after his arrest, be taken before a magistrate or other judicial

officer and, after being informed as to his rights, shall be given an

opportunity publicly to make any statement and answer any ques-

“tions regarding the charge that he may desire to answer.” MCL

764.26; MSA 28.885.

9 In 1960, based on State statutes, see fn. 8, and the State Constitu-

tional guarantee of due process, then Mich. Const. 1908, art. 2, § 16;

now Mich. Const. 1963, art. 1, § 17, Michigan became the first State

to adopt an exclusionary principle similar to that announced in

McNabb v. United States, 318 U.S. 332; 63 S.Ct. 608; 87 L.Ed. 819

(1942). People v. Hamilton, 359 Mich. 410, 411; 102 N.W.2d 738

(1960). Following the rationale of McNabb, the Michigan Supreme

Court held inadmissible statements made during detention where

arraignment had been delayed by police for the purpose of obtaining a

confession. People v. Hamilton, supra. See also, People v. Harper,

365 Mich. 494, 502-503; 113 N.W.2d 808 (1962); People v. Farmer, 380

Mich. 198; 156 N.W.2d 504 (1968); People v. White, supra.

“The delay was used as a tool to extract the three post-

polygraph statements. Sergeants Ericson, Hoff, and Gar-

rison all testified that they asked defendant to submit to a

polygraph so that they could determine whether he was

telling the truth. Although they did not specifially instruct

the examiner to obtain a statement, Sergeant Hoff testi-

fied that they had hoped to obtain another statement if

defendant’s original confession proved inaccurate. The

police —_ a ee to ae ~~ =

against our defendants, particulary ite, who

not yet confessed to any involvement. The three post-

lygraph — therefore were not admissible.” 421

ich., at ;

It is readily apparent that the Michigan Supreme Court's

consideration of the post-arraignment Edward’s type issue,

see Parts I-III, was an additional ground which the Court

needed to reach only for the companion case, People v. Rudy

Bladel, Mich. S.Ct. No. 69749. All four of Respondent’s post-

polygraph confessions were obtained pursuant to an unrea-

sonable delay in arraignment. It was during the unlawful delay

that Respondent admitted he shot Mr. Perry. The final taped

statement taken after arraignment merely confirmed what

Jackson had already said during the unlawful delay. This is

certainly fruit of the poisonous tree. Wong Sun v. United

States, 371 U.S. 471; 83 S.Ct. 407; 9 L.Ed.2d 441 (1963).

Moreover, it is difficult to imagine how the occurrence of an

arraignment before the seventh and last confession would cure

the unreasonable delay. In any case, if such arguments are to

be made they must be on state grounds and in the state courts.

The Petitioner stated in the Petition for Writ of Certiorari:

“In their opinion, the Michigan Supreme Court held that

the fourth, fifth, and sixth statements were obtained as a

result of the violation of a state ‘prompt-arraignment’

statute. The Petitioner recognizes that this decision is not

before this Honorable Court.

* * *

“Even though a re-trial of this respondent must be held, it

is vital that this seventh statement be found to be admissi-

ble for the reason that in it, respondent admits that he was

in fact the shooter, contrary to his earlier, admissible,

statements. Thus, this petition presents a ‘live’ issue to

this Honorable Court.” (Petition for Writ, pp 12-13;

emphasis added).

The record in Respondent's case includes more than 3800

pages of transcript. The hearing on Defendant's Motion to

Suppress lasted seven (7) days and produced nearly 800 pages

of transcript. It is incredulous that Petitioner now asks this

Court to expend scarce federal judicial resources to review this

case “even though a retrial of this respondent must be held”.

This Court should certainly find the Bladel case a more appro-

priate vehicle to resolve the issue of post-arraignment inter-

ogation.

This Court should dismiss the Writ of Certiorari as improvi-

dently granted in Respondent Jackson's case because the deci-

sion of the Michigan Supreme Court to reverse his conviction

was “alternatively based on bona fide separate, adequate, and

independent grounds.” Michigan v. Long, __ U.S. —_; 103

S.Ct. 3469; 77 L.Ed.2d 1201, 1214 (1983). See also, Lynch v.

New York, 293 U.S. 52; 55 S.Ct. 16; 79 L.Ed. 191 (1934); Seid,

Schizoid Federalism, Supreme Court Power and Inadequate

Adequate State Ground Theory: Michigan v. Long, 18

Creighton L.R. 1 (1984).

Il. BY ANY REASONABLE STANDARD, THE STATE

CANNOT ESTABLISH THAT MERE MIRANDA

ADVICE, GIVEN UNDER THE COERCIVE CIRCUM-

STANCES OF THIS CASE, WAS SUFFICIENT TO

ENABLE RESPONDENT JACKSON TO UNDER-

STANDINGLY WAIVE HIS RIGHTS TO COUNSEL

GUARANTEED BY THE FIFTH AND SIXTH

AMENDMENTS TO THE UNITED STATES CONSTI-

TUTION.

A. Police Tactics In Robert Jackson’s Case

Robert Jackson’s case presents a unique and unusually can-

did inside view of police interrogation practices. In the 1960's,

the United States Supreme Court took the first serious steps to

provide guidelines for police interrogation practices. Escobedo

v. Illinois, 378 U.S. 478; 84 S.Ct. 1758; 12 L.Ed.2d 977 (1964),

Miranda v. Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d

694 (1966). It is apparent that the police in Jackson’s case found

little pause in their efforts to circumvent the spirit of Escobedo,

Miranda, and their progeny. Ordinarily these police practices

remain undisclosed and only the barren waiver of rights and

statements of the accused are highlighted. However, in this

case, the police inexplicably made and retained a tape-record-

ing of their contemporaneous interrogation of codefendant

Michael White. A transcript of this tape-recording is a part of

the record on appeal. In addition, there was an extensive

record made at a seven (7) day pretrial suppression hearing.

Robert Jackson was first arrested by Detroit Police on Mon-

day night, July 30, 1979, following the confession of Chare

Knight accusing Jackson of the murder of Rothbe Elwood

Perry. Knight’s confession, and other evidence gathered by

Livonia Police during nearly 3 weeks of investigation before

Jackson's arrest, certainly provided sufficient evidence for

“probable cause”. Livonia Police had no lawful reason for not

promptly taking Jackson before a magistrate. !° (J.A. 122-123).

Instead, they took him straight to their “conference” room in

the basement of the police station. (WHT 50-51).

The police tactics in this case were designed to exert psycho-

logical pressure to obtain a confession to be used in court.

First, Robert Jackson and codefendant Michael White were

arrested, separated and incarcerated by Detroit Police. The

next day (Tuesday) when transferred to Livonia, Jackson and

White were told not to talk at all until they had arrived at the

police station. (WHT 140). Presumably this prevented them

from collaborating or, on the other hand, telling a story which

they might feel compelled to stick to. By “chance” when they

arrived at the booking area, there stood Chare Knight. (WHT

10 See fn. 9; supra.

143-144). Jackson was then isolated and still prevented from

talking until police could tell him about the mandatory life

imprisonment he faced and Knight's confession claiming that

Jackson shot Mr. Perry. (WHT 54-55). A review of the taped

interrogation of Micha2] White shows that the police repeat-

edly stressed the hopeless situation these defendant's were in.

See fn. 5, supra.

The police also made it clear to Jackson that his only hope

was to “cooperate”, waive his rights and make a statement, so

that he could plead guilty to second degree murder, and take

whatever sentence break the police could persuade the judge to

give. Respondent Jackson asserted that he had requested an

attorney during the first interrogation session but was told that

an attorney would not help him. (J. A. 89-92). Who could blame

an accused for failing to understand the value of counsel after

being given advice such as that given by Sgts. Garrison and

Hoff:

“GARRISON: Now I think you need a brick to hit you

t a wall to realize that your in serious trouble here

a wt that the only way you have hope is by us. I don’t know

oy ur gonna think, now if you want an attorney, I’ll tell

an attorney is gonna tell ya, an attorney is gonna

tell ya don’t talk to lee. I can tell you that right now.

*t talk to the police. But, the po eat doesn’t go to

jai ns he?

“HOFF: You know what the att..cney a hag Ane

that, the attorney knows that that’s go 5 hotel

even if he’s appointed he gets paid by A me ke Peal days.”

(J.A. 157-158),

The Livonia Police wanted the courts to believe that no

promises or inducements were made to obtain Robert Jackson's

waiver of rights and his statements because they did not “guar-

antee” a deal. |! Essentially, this was their position according to

11 Michigan Courts have long held statements inadmissible if

induced by a law enforcement official’s promise of leniency. People v.

Conte, 421 Mich. 704; 365 N.W.2d 648 (1984); Flagg v. People, 40

their sworn testimony at the Walker hearing. (J.A. 105-108).

Sgt. Garrison testified that “nothing was ever said about the

cooperation. Right from the start we are unable to do any-

thing.” (J.A. 269). Yet, the transcript of the tape recording!? of

the interrogation of codefendant Michael White clearly reveals

that the police induced Respondent Jackson to waive his rights

under the Fifth and Sixth Amendments, inter alia, by persuad-

ing him that his “cooperation” would enable him to plead to a

lesser offense and recieve consideration for his testimony at the

time of sentencing. Even an experienced lawyer might have

been persuaded that the Livonia Police truly controlled the

Wayne Country criminal justice system. See e.g., Counter-

Statement of Case, supra.

In trying to persuade White to “cooperate”, the police

repeatedly stated they had already made a deal with Jackson:

“We have almost sixty witnesses right now who will be

oben f And one of those witnesses is going to be Bobby

ackson}.”

* * *

“... Charlie, he’s cooperating, we’re gonna let him off

with something’ easy. And even the guy that did the shoot-

ing, Bobby J n.” (J.A. 160). See also, Counter-State-

ment of Case, supra.

Even while Jackson accompanied White and the police in the

interrogation room, the police stated:

“. « you’re [Jackson] gonna be testifying . . . ah, but the

other man [Knight] is going to be testifying, because how

Mich. 706 (1879). As discussed at length in Bram v. United States, 168

U.S. 582, 542-561; 18 S.Ct. 183; 42 L.Ed. 568 (1897), the reliability of

such an induced statement is suspect. Modern day psychologists

support this conclusion. Zimbardo P.G., The Psychology of Police

Confessions. Psychology Today, 1967, June 1(2), 17-27.

12 At the Walker hearing, Sgt. Hoff testified that everything said at

this interrogation session was “basically” true. (J.A. 129-130). Sgt.

Garrison testified that he did not realize, at the time of this interroga-

tion, that everything was being tape recorded. (WHT 276).

they'll do it, they'll take a plea of guilty probably to second

degree murder and then just hold your testimony or hold

your sentencing up for honest ‘estimony. . . . You know,

this guy [Jackson] didn’t come right in and spill the whole

thing, . . .” (IT 22). See also, Counter-Statement of Case,

supra.

When they later testified in court, the police were obviously

taking a hyper-technical view of their negotiations with Jack-

son and White. The police were especially careful to couch their

testimony at the Walker hearing in language designed to

ensure admissibility rather than to reveal their actual inter-

rogation practices. See fn. 11, supra. It is apparent that each

defendant, when it came to critical moments in their interroga-

tion (and even the trial court), did not understand the language

game!3 being played by these veteran police officers. But, the

tape recording is quite clear. The police, despite their protesta-

13 In United States v. Marshall, 488 F.2d 1169, 1170-1171, fn. 1(CA

9, 1973), the Court was concerned about the difficulty in understand-

ing government agents:

“The agents involved speak an almost impenetrable jargon. They

do not get into their cars; they enter official government vehicles.

They do not get out of or leave their cars, they exit them. They do

not go somewhere; they proceed. They do not go toa =

place; they proceed to its vicinity. They do not watch or look; they

surveille. They never see an ; they observe it. No one tells

them anything; they are advised. A person does not tell them his

name; he identifies himself. A person does not say something; he

indicates. They do not listen to a telephone conversation; they

monitor it. People telephoning to each other do not say thello;’

they exchange greetings. An agent does not hand money to an

informer to make a buy; he advances previously recorded official

rnment funds. To an agent, a list of serial numbers does not

serial numbers, it depicts Federal Reserve Notes. An agent

ancy Oat peep eres es ee ‘to

my know .’ They cannot describe a conversation by saying

‘he said’ ‘I said;’ they pane in conclusions. Sometimes it

takes the combined efforts of counsel and the judge to get them

to state who said what. Under cross-examination, they seem

unable to give a direct answer to a — they either spout

conclusions or do not understand. This often gives the pros-

ecutor, under the Lay of an objection, an opportunity to sug-

gest an answer, which is then obligingly given.”

tions that no “guarantees” were made, threatened to nail

Robert Jackson “all the way up on One” unless he cooperated by

giving a statement “because how they'll do it, they’ll take a plea

to second degree murder and then just hold your. . . sentenc-

ing up for honest testimony.” (Sgt. Garrison speaking to

Robert Jackson (IT 22)].

Like Benjamin [McNabb v. United States, supra], Robert

Jackson made an incriminating oral statement after he was

confronted with an accomplice’s (Chare Knight) statement

accusing him as the murderer. (J.A. 90-92). Although Jackson

asserted that Knight was the shooter, his admission that he had

accompanied Knight to the scene of the crime was surely

enough to resolve any doubts, if there ever were any, about

whether Jackson should be formally charged and arraigned.

Nonetheless, the Livonia Police decided that more was

required “to get the truth”. Instead of taking Jackson before a

magistrate, they held him to tape record his statement at 5:52

p.m. Then at 8:28 p.m., allegedly because the first recording

was of “poor quality”, the Livonia Police tape recorded the

statement again. Each time Jackson asserted that Chare

Knight was the shooter. (WHT 55-60).

Now with three confessions in hand, the Livonia Police still

did not take Jackson before a magistrate. Instead, the next

morning (Wednesday), like Andrew Mallory, [Mallory v.

United States, 354 U.S. 499, 450-451 (1957)], the police had

Jackson and Knight take polygraph tests. Sgt. Ericson testi-

fied that he told Jackson “he would have to submit to a poly-

graph test and pass it successfully before [he] totally believed

his statement.” (WHT 122). Presumably the winner of the

polygraph sweepstakes would be given a “break” for coopera-

tion in testifying against the loser. Chare Knight won. He

subsequently testified against Jackson for a plea bargain to

second degree murder and 10-15 years in prison. Robert Jack-

son lost. He subsequently admitted to the polygraph examiner

and to Sgt. Hoff that he was the shooter. Finally, at 4:30 p.m.,

Wednesday, August 1, the Livonia Police finally took him

before a magistrate where he formally requested the

assistance of counsel.

Extended inearceration was another tool the police used

during their interrogation of Respondent Jackson. The length

of delay Respondent's arraignment was not remarkable by

itself. Jackson’s first incriminating statement was made

between 14 and 24 hours efter his arrest by Detroit Police.'4

His last statement was made about 2-1/2 days after arrest.

Benjamin McNabb’ first incriminating statement was made

just 5-6 hours after he was taken into custody. And Maurice

Hamilton [People v. Hamilton, supra] lasted more than 3-1/2

days before he confessed. It was readily apparent, however,

that the Livonia Police delayed arraignment for the unlawful

purpose of extracting numerous incriminating statements to be

used against Jackson at trial. !®

14 There was no dispute that Jackson was first arrested by Detroit

Police on Monday night, July 30, 1979. However, the record does not

indicate the exact time of arrest on that date. Jackson testified that he

was questioned 3 or 4 times by Detroit Police. (J.A. 96). Sgt. Ericson

assumed he had been arrested and questioned by Detroit Police

during the night of July 30. (WHT 97).

15Sgt. William Hoff testified at the Walker hearing that the

Livonia Police had sufficient evidence to arrest Jackson when they

took custody of him from the Detroit Police on July 31st. Sgt. Hoff

also testified that they “could have sought a warrant that evening.

However, . . . the Prosecutor's Office was closed.” (J. A. 122-123). Hoff

also agreed that if the warrant had been issued on the morning of

August Ist, Jackson could have been arraigned then, except the

police needed to take him to a polygraph test. (J.A. 124-125). Iron-

ically, the police found time to take Jackson to a polygrapher but

couldn’t fit an arraignment into their busy interrogation schedule.

The suggestions by Livonia Police that the delay in arraignment was

justified by their need for approval from the prosecutor and the

typing of a 36 page affidavit in support of a request for a warrant were

transparent cover-up arguments. In 1960, the Michigan Supreme

Court in People v. Hamilton, 359 Mich. 410, 417; 102 N.W.2d 738

(1960), recognized that “[mJagistrates of Michigan are, for purposes

B. The Right To Counsel For In-Custody Police Interroga-

tion.

It is difficult to overstate the importance of counsel for an

accused in police custody and facing expert interrogators. This

Court has recognized the powerful psychological tactics avail-

able to police interrogators. See United States v. Henry, 447

U.S. 264, 273-274; 100 S.Ct. 2183; 65 L.Ed.2d 115 (1980). In

Miranda v. Arizona, supra, at 445-448, Chief Justice Warren

prefaced that benchmark decision with a discussion of the

coercive nature and setting of in-custody interrogation. In

declaring that the presence of counse! was a matter of right, the

Court stated:

“The circumstances surrounding in-custody interrogation

can operate very quickly to ove the will of one merely

made aware of his privilege by his interrogators. There-

fore, the right to have counsel present at the Interrogation

is indispensable to the protection of the Fifth Amendment

of said sections 13 and 26 [see fn. 8], on legal duty at all times; Sunday,

holidays or no.” In Wayne County there is an Assistant Prosecuting

Attorney on call at all times. No one would doubt that, if police

believed these procedures to be necessary to secure actual cust ody of

Robert Jackson, they would have been streamlined to mere hours

before he was taken into custody. But when custody had already been

achieved and the accused's rights were at stake, police machinery

moved at a decidely slower pace.

Due process does not define a strict number of hours within which

prompt arraignment must occur. But the spirit of prompt arraign-

ment js to avoid exactly what occurred here. Robert Jackson did not

come to the police to volunteer a confession. He was arrested, jailed,

pressured, wheedled and cajoled until he waived his rights to the

satisfaction of the police and confessed numerous times. Others may

have lasted longer but the timing of arraignment must not be dictated

by the time it takes police to obtain a confession of their liking. This

was not due process but police pre . »ss. The Michigan Supreme Court

recognized this and suppressed the statements obtained by the police

after the polygraph exam. People v. Bladel and Jackson, 421 Mich..,

at 69-74.

privilege under the system we delineate today. Our aim is

to assure that the individual’s right to choose between

silence and speech remains unfettered throughout the

interrogation. A once-stated warning, delivered by those

who will conduct the interrogation, cannot itself suffice to

= end among those who most require knowledge of their

rights.

* * *

“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 nev-

ertheless 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 od reported by the prosecu-

tion at trial.” Jd., at 469-470.

In United States v. Ash, 413 U.S. 300; 306-313; 93 S.Ct. 2568;

37 L.Ed.2d 619 (1973), Justice Blackmun re-examined the his-

tory of the role of counsel in Anglo-American law.'® Justice

Blackmun was particularly concerned about the circumstances

under which the right to counsel must be extended:

“ _ . extension of the right to counsel to events before trial

has resulted from changing patterns of criminal procedure

and investigation that have tended to generate pretrial

events that might appropriately be considered to be

of the trial itself. At these newly emerging and significant

events, the accused was confronted, just as at trial, by the

16 See also, Powell v. Alabama, 287 U.S. 45, 60-69; 53 S.Ct. 55; 77

L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335; 83 S.Ct. 792, 9

L.Ed.2d 799 (1963); Massiah v. United States, 377 U.S. 201; 84S.Ct.

1199; 12 L.Ed.2d 246 (1964); Coleman v. Alabama, 399 U.S. 1; 90

S.Ct. 1999; 26 L. Ed.2d 387 (1970); Brewer v. Williams, 430 U.S. 387;

97 S.Ct. 1232; 51 L.Ed.2d 424 (1977); Fare v. Michael C., 442 U.S.

707; 99 S.Ct. 2560; 61 L.Ed.2d 197 (1979); Estelle v. Smith, 451 U.S.

454; 101 S.Ct. 1866; 68 L.Ed.2d 359 (1981).

a seg system, or by his expert adve , or by both.

n Wade [United States v, 388 U.S. 218; 87 S.Ct. 1926; 18

L.Ed.2d 1149 (1967)], the Court explained the process of

expanding the counsel guarantee to these confrontations:

‘When the Bill of Rights was adopted, there were no

organized police forces as we know them today. The

accused confronted the prosecutor and the witnesses

against him, and the evidence was marshalled,

ly at the trial itself. In contrast, today’s w

enforcement machinery involves critical : : nfronta-

tions of the accused by the prosecution at pretrial

a the results might well settle the

accused's and reduce the trial itself to a mere

formality. In recognition of these realities of modern

1 om Sane our cases ne eee the

i endment guarantee to apply ‘critical’ stages

of the , ings.’ 38 U.S., at Dod. (footnote omit-

ted).” 413 U.S., at 310-311.

There should be little doubt that police interrogation is a

more critical stage than the corporal line-up which was the

subject of Wade. A confession not only establishes identity but

also frequently determines every issue of a criminal trial.

Although it is reasonable to assume that an accused will not

often admit to some involvement in a crime when there was

none, the determination of the accused's degree of involvement

is often a more critical issue. It is here that the skills of counsel

are required. Without counsel to insure accuracy, the jury trial

frequently becomes a formality where the police redition of the

accused's confession is practically unrebuttable.

Counsel is especially important when, as now, the criminal

justice system is under extreme pressure. The caseloads of

judges and prosecutors are increasing rapidly. These public

servants, no matter how noble, are less able to perform their

traditional and personal duties to insure that justice is done for

each individual who stands accused. See Burger v. United

States, 295 U.S. 78, 88; 55 S.Ct. 629; 79 L. Ed.2d 1314 (1935). In

Ash, supra, at 308-309, the Court recognized the need for

counsel to minimize the imbalance resulting from the creation

of a professional prosecutor in the 18th century. As the criminal

justice system becomes increasingly adversarial, the individ-

ual must rely more heavily on defense counsel to insure fairness

through a balance of power. !7

It is well settled that each time the Livonia Police interro-

gated Respondent Robert Jackson while in custody, the 5th and

14th Amendments to the United States Constitutional guaran-

teed him the right to have counsel present.!® Under some

circumstances, a Sixth Amendment right to counsel has also

been extended when, as in Respondent’ case, police investiga-

tion has focused on the accused as a suspect rather than a

17 In Brewer v. Williams, supra, at 398, Justice Stewart wrote:

“This right [to counsel], guaranteed by the Sixth and Fourteenth

Amendments, is indispensable to the fair administration of our

adversary system of criminal justice. Its vital need at the pre-

trial = perhaps nowhere been more succinctly explained

than in Mr. Justice Sutherland’s memorable words for the Court

44 years ago in Powell v. Alabama, 287 U.S. 45, 57:

‘(Djuring perhaps the most critical period of the proceedin

Jak airy Line defendants, that is to say, from the time of their

aie ag until the beginning of poe trial, when con-

s on, thoroughgoing investigation pre on were

vitally important, the defendants did not have the aid of coun-

sel in any real sense, although they were as much entitled to

such aid during that period as at the trial itself.’”

18 In Eda-ards v. Arizona, 451 U.S. 477, 481-482; 101 S.Ct. 1880; 68

L. Ed.2d 378 (1981), the Court was Clear and unequivocal in affirming

this right:

“In Miranda v. Arizona, supra, the Court determined that the

Fifth and Fourteenth Amendments’ prohibition against com-

pelled self-incrimination required that custodial interrogation be

preceded by advice to the putative defendant that he has the

right to remain silent and also the right to the presence of an

attorney. Jd., 384 U.S., at 479. The Court also indicated the

procedures to be followed subsequent to the warnings. If the

accused indicates that he wishes to remain silent, ‘the interroga-

tion must cease.’ If he requests counsel, ‘the interrogation must

cease until an attorney is present.’ 384 U.S., at 474.

“Miranda thus declared that an accused has a Fifth and Four-

teenth Amendment right to have counsel present during

custodial interrogation.

general investigation.!® Finally, there is little question that

when interrogated after arraignment, the 6th Amendment

guaranteed Jackson the right to the presence of counsel.2° The

19 In Escobedo v. Illinois, 378 U.S. 478; 84.S.Ct. 1758; 12 L.Ed.2d

977 (1964), a police investigation of murder had focused on Danny

Escobedo. Escobedo, like Respondent Jackson “had become the

. accused, and the purpose of the interrogation was to ‘get him’ to

confess despite his constitutional right not to do so.” Id., 485. The

police took Escobedo into custody for interrogation and refused to

honor his request for counsel at the interrogation. Justice Goldberg,

writing for the majority, stated:

“What happened at this interrogation could certainly ‘affect the

whole trial,’ since rights ‘may be as irretrievably lost, if not then

and — + soa dy are when an accused a b

counsel waives a right for strategic purposes.’ It wo t

form over substance to make the right to counsel, under these

circumstances, depend on whether at the time of the interroga-

tion, the authorities had secured a formal indictment. Petitioner

had, for all practical p s, already been charged with

murder.” [citations omit 378 U.S., at 486.

20 In their opinion below, People v. Bladel, 421 Mich. 39, 51-52; 365

N.W.2d 56 (1984), the Michigan Supreme Court succinctly recounted

the authorities establishing this right:

“The Sixth Amendment guarantees that ‘iJn all criminal pros-

ecutions, the accused shall enjoy the right ... to have the

Assistance of Counsel for his defense.’ However, this right to

counsel attaches only at or after the initiation of adversary

charge, prelimina earing, indictment, information, or

ae United States v. Gouveia, U.S. ,

104 S.Ct. 2292; 81 L.ED.2d 146, 153-154 (1984); Kirby [v. [lli-

nois, 406 U.S. 682; 92 S.Ct. 1877; 32 L.Ed.2d 411 (1972)], supra,

406 U.S. 688-689. The accused is entitled to counsel not only at

trial, but at all ‘critical s of the prosecution, i.e., those

stages ‘where counsel’: absence might derogate from the

accused's right to a fair trial.’ United States v. Wade, 388 U.S.

218, 226-227; 87 S.Ct. 1926; 18 L.Ed.2d 1149 (1967). Regardless

of whether the accused is in custody or subjected to formal

interrogation, the Sixth Amendment right to counsel exists

whenever the police attempt to elicit incriminating statements.

Henry [United States v. 447 U.S. 264; 100 S.Ct. 2183; 65

L.Ed.2d 115 (1980)], supra, 447 U.S. 271-273. See also Brewer v.

serious questions in this case are whether Respondent Jackson

waived these rights.

C. Waiver Of Constitutional Right To Counsel Generally.

In 1938, the Supreme Court adopted a general definition of

waiver in a case involving the constitutional right to counsel.

Johnson v. Zerbst, 304 U.S. 458, 464; 58 S.Ct. 1019; 82 L.Ed.

1461 (1938):2!

“It has been pointed out that ‘courts indulge every reason-

able presumption against waiver’ of fundamental constitu-

tional rights and that we ‘do not presume acquiescence in

the loss of fundamental rights.’ A waiver is ordinarily an

intentional relinquishment or abandonment of a known

right or privilege. The determination of whether there has

been an intelligent waiver of the right to Counsel must

depend, in each case, upon the particular facts and circum-

stances surrounding that case, including the background,

experience, and conduct of the accused.” (footnotes omit-

ted, emphasis added).

Application of this waiver standard is not always a simple

matter. In Schneckloth v. Bustamonte, 412 U.S. 218, 243-244;

93 S.Ct. 2041; 36 L.Ed.2d 854 (1973), Justice Stewart wrote:

“To be true to Johnson and is rogeny, there must be

examination into the knowing and understanding nature of

the waiver, an examination that was designed for a trial

judge in the structured atmosphere of a courtroom. As the

Court expressed it in Johnson:

Williams, 430 U.S. 387; 97 S.Ct. 1232; 51 L.Ed.2d 424 (1977);

Massiah v. United States, 377 U.S. 201; 84 S.Ct. 1199; 12

L.Ed.2d 246 (1964).”

21 This same standard is now applied where the right to counsel is

quaranteed by the 5th or 6th Amendments. Edwards v. Arizona, 451

U.S. 477, 482; 101 S.Ct. 1880; 68 L.Ed.2d 378 (1981). See Faretta v.

_California, 422 U.S. 806, 835; 95 S.Ct. 2525; 45 L. Ed.2d 562 (1975);

North Carolina v. Butler, 441 U.S. 369, 374-375; 99 S.Ct. 1755; 60

L.Ed.2d 286 (1979); Brewer v. Williams, 430 U.S. 387, 404; 97 S.Ct.

1232; 51 L.Ed.2d 424 (1977); Fare v. Michael C., 442 U.S. 707,

724-725; 99 S.Ct. 2560; 61 L.Ed.2d 197 (1979).

‘The constitutional right of an accused to be repre-

sented by counsel invokes, of itself, the protection of a

trial court, in which the accused—whose life or lib-

erty is at stake—is without counsel. This protecting

duty imposes the serious and weighty responsibility

upon the trial judge of determining whether there is

an intelligent and competent waiver by the accused.

While an accused may waive the right to counsel,

whether there is a proper waiver should be clearly

determined by the trial court, and it would be fitting

and appropriate for that determination to appear

upon the record.’ 304 U.S, at 465.”22

It is apparent that the Court has not felt compelled to remain

“true” to Johnson and its progeny in cases involving in-custody

pre-arraignment interrogation. Although adhering to the

Johnson definition, the police are generally entrusted to deter-

mine waiver in the first instance and courts try to reconstruct

whether the waiver was intelligent under the totality of the

circumstances. Solem v. Stumes, ___. U.S. ___; 104 S.Ct.

1338; 79 L. Ed.2d 579, 589-590 (1984); North Carolina v. Butler,

441 U.S. 369, 374-375; 99 S.Ct. 1755; 60 L.Ed.2d 286 (1979).

The in-court examination of the accused has been required

where an accused seeks to waive counsel at trial, Faretta v.

“2 The Court was even more explicit in Von Moltke v. Gillies, 332

_ U.S. 708, 723-724; 68 S.Ct. 316; 92 L.Ed. 309 (1948):

“To discharge this duty [of assuring the intelligent nature of the

waiver] | pespensy in light of the strong presumption against

waiver of the constitutional right to counsel, a judge must inves-

tigate as long and as thoroughly as the circumstances of the case

before him demand. The fac | that an accused may tell him that he

is informed of his right to counsel and desires to waive this right

does not automatically end the judge’s responsibility. To be valid

such waiver must be made with an apprehension of the nature of

the charges, the statutory offenses included within them, the

range of allowable punishments thereunder, possible defenses to

the charges and circumstances in mitigation thereof, and all

other facts essential to a broad understanding of the whole

matter. A judge can make certain that an accused’s professed

waiver of counsel is understandingly and wisely made only from

a penetrating and comprehensive examination of all the circum-

stances under which such a plea is tendered.” (emphasis added).

California, 422 U.S. 806; 95 S.Ct. 2525; 45 L. Ed.2d 562 (1975).

Courts may be reluctant to make such procedure a require-

ment for pre-arraignment interrogation presumably because of

the practical difficulties which might frustrate police and

because interrogation at the pre-arraignment stage is fre-

quently investigatory rather than solely accusatory. Cf.

Schneckloth v. Bustamonte, supra, at 245. Once formal crimi-

nal proceedings have begun, however, the police interrogate

the accused presumably to bolster the State’s case and the

accused must be brought before a magistrate for arraignment

anyway. The circumstances have changed and the more careful

judicial examination is both fair and practical.

D. The Prosecution’s Burden To Prove A Post-Arraignment

Waiver Of Counsel During Police Interrogation Is Sub-

stantially Greater Than A Pre-Arraignment Waiver

Because An Understanding Waiver At This Stage Is

Extremely Unlikely.

It is fundamentally unfair to hold that a precious right is

waived under circumstances where an individual is unlikely to

have understood the importance of that right. See e.g., fn. 22

(VonMoltke v. Gillies). There is not one lawyer in this country

who would have the temerity to say that an accused should talk

to the police without counsel to advise him.”* The plain likeli-

hood is that the accused has little or no comprehension of what

23 Consider, for example, a child of 10 who seeks to “waive” the

apparent drugery of public school. Few would disagree that the child

cannot waive the precious right to education. Yet when the child

reaches age 16 or achieves 8th grade, an understanding “waiver” may

be made. On the other hand, if a patient had a right to a heart

transplant, there is probably no age at which such a right could be

intelligently waived or invoked without examination by a heart sur-

geon and a thorough discussion with the patient. And yet, where the

constitution provides a right which every legal expert would sum-

marily invoke for a client without examination, how can courts be

willing to assume an “understanding” waiver on the basis of police

testimony that they advised the accused pursuant to Miranda?

he is doing if he waives the right to counsel after the State has

already formally charged him with a felony.24 Why then should

courts be easily persuaded that counsel may be waived so long

as police inform the accused, pursuant to Miranda, that he/she

has a right to counsel?

In Robert Jackson's case, the police initiated the interroga-

tion session which followed Jackson's request for counsel at ar-

raignment. The Michigan Court of Appeals attempted to dis-

tinguish the Edwards case from the case at bar because Jack-

son requested counsel at his arraignment rather than during an

interrogation session. People v. Jackson, 114 Mich. App. 649,

658-659 (1982). The Michigan Court of Appeals quoted from

Blasingame v. Estelle, 604 F.2d 893, 895-896 (CA. 5, 1979) [a

pre-Edwards case]:

“(Slome defendants may well wish to have an attorney to

represent them in legal proceedings, yet wish to assist the

investigation by to an investigating officer without

an attorney present. ile the suspect an absolute

right to terminate stationhouse interrogation, he also has

the prerogative to then and there answer questions, if that

be his choice.’ Nash [v. Estelle, 597 F.2d 513, 517 (CA. 5,

1979)]. To hold that a request for appointment of an

attorney at arraignment would bar an investigating officer

from later finding out if defendant wishes to exercise this

*4 As Judge Knapp pointed out in United States v. Satterfield, 417

F.Supp. 293, 296 (SD. NY.), aff'd., 558 F.2d 655 (CA. 2, 1976):

“Prior to indictment—before the prosecution has taken shape—

there may be reasons why a suspect might rationally wish to deal

with agents without the intervention of counsel. By getting in

their graces and being useful to the government he might

be able altogether to avoid indictment or any legal entaglement.

No such opportunity is open to him after a grand jury has

spoken. At that point he cannot inake any arrangement with

— or prosecutor that is not subject to ultimate approval by

court, and counsel is obviously oy to advise him on

what terms such approval is likely to

best to obtain it.”

See also, United States v. Clements, 713 F.2d 1030, 1034 (CA. 4,

1983).

forthcoming and how

prerogative would transform the Miranda safeguards,

among which is the right to obtain appointed counsel, ‘into

wholly irrational obstacles to legitimate police inves-

tigative activity, and deprive suspects of an ey to

make informed and intelligent assessments of their inter-

ests.’ Michigan v. Mosley, 423 U.S. 96, 102; 96 S.Ct. 321,

326; 41 L.Ed.2d 313 (1975).”

The suggestion that appointed counsel is an “irrational

obstacle” and will “deprive suspects of an opportunity to make

informed and intelligent assessments” totally ignores the fact

that after arraignment, police interrogation has become a pros-

ecutorial activity designed to convict not to exculpate. Iron-

ically, the Livonia Police also described counsel’s role as an

irrational obstacle when they advised “the only way you have

any hope is by us. . . the attorney doesn’t go to jail, does he?”

(J.A. 157-158). It is ludicrous to suggest that Robert Jackson,

or any other person formally charged with first-degree

murder, requests counsel at arraignment solely because he

wants help in the courthouse but not in the stationhouse.

Logically, it cannot be disputed that the right to counsel

becomes more important after the State has formally decided

to charge an accused with a serious crime. Since the circum-

stances the accused finds himself in are always more accusatory

after arraignment than before, the burden on the prosecution

must increase. Those authorities holding that a greater burden

exists vary as to what extend the burden increases.” However,

25 See United States v. Mohabir, 624 F.2d 1140 (CA. 2, 1980)

[judicial officer must explain content and significance of right to

counsel]; United States v. Clements, 713 F.2d 1030 (CA. 4, 1983)

[mere Miranda advice insufficient, accused must at a minimum also

be informed of indictment]; State v. Wyer, 320 S.E.2d 92 (W. Va, 1984)

[defendant must execute a written waiver after being informed of his

arrest, the nature of the charges against him, and his Miranda

rights] People v. Bladel and Jackson, 421 Mich. 39, 65-66; 365

N.W.2d 56 (1984) [at a minimum, Edwards-type rule applies]; United

States v. Durham, 475 F.2d 208, 210-211 (CA. 7, 1973) [Chief Judge

Swygert would adopt per se exclusionary rule].

in any case an understanding waiver of the precious right to

counsel for post-arraignment interrogation should require

more than mere Miranda advice.

E. Where Respondent Jackson Gave Seemingly Inconsis-

tent Responses To Questions Whether He Wanted Coun-

sel At Post-Arraignment Police Interrogation, There Was

Not An Effective Waiver Of His Fifth Amendment Right

To Counsel Under The Totality Of The Circumstances.

Robert Jackson testified that he asked for counsel at the

start of the first pre-arraignment interrogation session in the

Livonia Police Station on July 31st, 1979. He testified that

when later asked whether he wanted an attorney, pursuant to

the incantations required by Miranda v. Arizona, supra, he

declined because the Livonia Police had explained that an

attorney would not help, rather, only his personal cooperation

could lead to a possible deal. (WHT 444-445). Jackson's testi-

mony was strongly corroborated by a tape recording of similar

outrageous police tactics during the interrogation of codefend-

ant Michael White. See Part A, supra. The Livonia Police

denied all immroper conduct. The trial judge decided only that

Jackson had not requested counsel. (J.A. 22).

It was undisputed, however, that Jackson requested the

appointment of counsel when he was arraigned in District

Court on August 1, 1979, and the police knew it. (J.A. 168;

WHT 130). On the day after he had been arraigned and

returned to the Livonia Jail, Jackson was again interrogated.

Sgt. Ericson testified they wanted another taped statement

from Jackson because he learned “that Bobby Jackson had now

changed his statement.” (J.A. 4). Sgt. Hoff began the post-ar-

raignment interrogation by reminding Respondent that he had

waived his rights in the past. There was no discussion or recog-

nition of his recent request for counsel. As far as the record

shows, there was nothing done beyond advising of Miranda

rights. (J.A. 31-33).

All of the courts below held that Respondent Jackson either

did not invoke his 5th Amendment right to counsel or knowing-

ly and voluntarily waived the right to counsel by failing to

request counsel when advised by police pursuant to Miranda,

supra. See People v. Bladel, supra, at 53. However, the lower

courts failed to consider that Jackson’s unequivocal request for

counsel at arraignment should be construed as at least an am-

biguous request for the presence of counsel at interrogation.

In Smith v. Illinois, 469 U.S. —_—_; 105 S.Ct. 490; 83

L.Ed.2d 488 (1984), the Court considered a case where the

accused was being questioned by police shortly after arrest but

before arraignment. He first stated that he wanted counsel

present and then promptly agreed to talk to police alone. The

Court held that since the accused first request was unequivocal

police should not have continued questioning him. The Court in

Smith, supra, at ___; 83 L.Ed.2d, at 494 noted an issue which

was unnecessary to reach:

“On occasion, an accused's asserted request for counsel

may be ambiguous or equivocal. As the ~~ — and dis-

senting opinions below noted, courts have developed con-

flicting standards for determining the consequences of

such ambiguities.* We need not resolve this conflict in the

instant case, .. . .” (citations omitted).

3Some courts have held that all questioning must cease

upon any request for or reference to counsel, however

equiv or ambiguous. See, og hep v. Superi

Court, 15 Cal.3d 735-736 P.2d 1390, 1394-1395

(1975), cert denied, 429 U.S. 816, 50 L.Ed.2d 76, 97 S.Ct.

58 (1976); Ochoa v. State, 573 S.W.2d 796, 800-801 (Tex.

Crim. App. 1978). Others have attempted to define a

threshold standard of clarity for such roqeeste and have

held that a me fallin B below this threshold do not +"

r the right to counsel. See 8. le v. Krueger,

.2d 305, 311, 412 N.E.2d 537, 540 (1980) (‘[A]n assertion

of the right to counsel need not be explicit, unequivocal, or

made with unmistakable clarity,’ but not ‘every reference

to an attorney, no matter how vague, indecisive or ambigu-

ous, should constitute an invocation of the right to coun-

sel’), cert denied, 451 U.S. 1019, 69 L.Ed.2d 390, 101 S.Ct.

3009 (1981). Still others have — a third approach,

holding that when an accused es an equi state-

ment that ‘ bly’ can be construed as a request for

counsel, all interrogation must immediately cease except

for narrow questions designed to ‘clarify’ the earlier state-

ment and the accused's desires respecting counsel. See,

e.g., Thompson v. Wainwright, 601 F.2d 768, 771-772 (CA.

5, 1979); State v. Moulds, 105 Idaho 880, 888, 673 P.2d

1074, 1082 (App. 1983).

Under any of the above noted standards, the post-arraign-

ment interrogation of Robert Jackson violated his 5th Amend-

ment right to counsel. It was clear that Jackson recognized he

needed counsel to help him in the courts and with his expected

adversary, the prosecutor. It should have been assumed that

his direct request for help with formal proceedings was no less

a request for help against equally expert adversaries, the

police, at a stage which counsel would have instantly recog-

nized as the most critical stage of all. The Livonia Police never

discussed Respondent's request for counsel. At the very least,

some steps should have been taken beyond Miranda advice to

insure a knowing (understanding) waiver.

F. The Police Interrogation Practices In Robert Jackson’s

Case Demonstrate That An Accused’s Post-Arraignment

Constitutional Rights Should Be Protected By A Prophy-

lactic Rule.

This Court should hold that a post-arraignment waiver of

counsel is not valid unless done after consultation with counsel

or after proper judicial inquiry pursuant to Faretta v. Califor-

nia, 422 U.S. 806; 95 S.Ct. 2525; 45 L.Ed.2d 562 (1975). It is

unrealistic to think that zealous police officers “engaged in the

often competitive enterprise of ferreting out crime,”26 will

26 The need for preemptive judicial intervention to guarantee effec-

tive constitutional rights was recognized by Justice Jackson in

Johnson v. United States, 333 U.S. 10, 13-14; 68 S.Ct. 367; 92 L.Ed.

436 (1948).

“The point of the Fourth Amendment, which often is not grasped

by zealous officers, is not that it denies law enforcement the

— of the usual inferences which reasonable men draw from

evidence. Its protection consists in requiring that those

inferences be drawn by a neutral and detached magistrate

instead of being jud by the officer engaged in the often

competitive enterprise of ferreting out crime. Any assumption

fairly inform an accused of the value of his constitutional rights

to counsel after the State has formally charged him with a

serious crime. What occurs in the “conference” rooms of police

stations rarely comes to light in the courtrooms of our criminal

justice system. Police are under intense pressure to solve the

burgeoning “problem” of crime which has perplexed the lead-

ers of our country for decades. The news media daily bombard

us with the horrors of crimes, many of which go unsolved. Yet,

our government, without effectively attacking the roots of

crime, asks the police to operate with inadequate resources and

salaries. Well-meaning police, even some judges under such

pressures dissemble, embellish and, sometimes, lie to ensure

conviction of an accused they believed to be guilty of a serious

crime.

It is important to remember that this case involves post-

arraignment?’ interrogation. “Only in an atypical case .. .

that evidence sufficient to support a magistrate’s disinterested

determination to issue a ation ge warrant will justify the officers

in making a search without a warrant would reduce the Amend-

ment to a nullity and leave the people's homes secure only in the

discretion of police officers. Crime, even in the privacy of one’s

own os, is, of —, <a concern to society, and the

law allows such crime to be ed on proper showing. The right

of officers to thrust themselves into a home is a grave

concern, not only to the individual but to a society which chooses

to dwell in reasonable security and freedom from surveillance.

When the right of privacy must reasonably yield to the right of

search is, as a rule, to be decided by a judicial ial officer, not by a

~ or government enforcement agent.” (Footnotes omit-

27 In Kirby v. Illinois, 406 U.S. 682, 689; 92 S.Ct. 1877; 32 L.Ed.2d

411 (1972), Justice Stewart wrote:

“The initiation of judicial criminal p ings is far from a mere

formalism. It is the starting point of our whole system of advers-

ary criminal justice. For it is only then that the nt has

committed itself to prosecute, and only then the adverse

positions of rnment and defendant have solidified. It is then

that a defendant finds himself faced with the prosecutorial forces

of organized society, and immersed in the intricacies of substan-

tive and procedural criminal law.”

does police interrogation occur after judicial proceedings are

initiated.” Grano, Rhode Island v. Innis: A Need to Reconsider

the Constitutional Premises Underlying the Law of Con-

fessions, 17 Amer. Crim. L.R. 1, 15 (1979). However, when

post-arraignment interrogation does occur, it must be assumed

that the police are seeking to strengthen the State's case for

trial. Professor Kamisar fairly stated the circumstances as

follows:

“Some people find it helpful to say that at this point there

is a ‘declaration of war’ between the government and the

defendant. The adverse positions of the government and

the defendant have ‘solidified.’ The parties, as the Chief

Justice put it in H reg? Naga now ‘arms length adversaries.’

447 U.S., at 275. At this point, hopefully, the government

has built its case. But if it has not, it cannot expect to elicit

any more information from the defendant. It is too late.

From this point on, the defendant is entitled to counsel

and the agents of government may omg, against him

only through his counsel.” Kamisar, Police Interrogation

and Confessions in Choper, Kamisar and Tribe, The

Vit Court: Trends and Developments, 1979-80, at p.

It is unrealistic, indeed, fundamentally unfair tc permit

police interrogation to continue after arraigninent with the

accused's only protection being a pretrial hearing where the

police are pitted against the accused in a swearing contest. The

rich have an effective protection, an attorney who will come at

their calling to advise them whether to speak. Unless the right

to counsel is effectively guaranteed at arraignment by a pro-

phylactic rule, the poor must rely on Miranda advice given by

the police. The interrogation of Michael White graphically

demonstrates the “Miranda advice” is hardly worth the paper

its printed on when the formal reading of rights is followed by

“police advice” such as that given by Sgt. Garrison and Sgt.

Hoff:

“Now I think you need a brick to hit you against a wall to

realize that oan in serious trouble him 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 police. I can tell you that right now. Don’t

— to the police. But, the attorney doesn’t go to jail, does

“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

. ase he gets paid by how much trial days.” (J.A.

Truth is a frequent casualty under the present system.

Police notes were the only record of the first interrogation

sessions of Robert Jackson beginning when he was first

arrested by Detroit Police. It can be fairly stated that abuse of

authority thrives on discretion. Must we take the word of police

that Jackson knowingly and intelligently waived his rights to

counsel? Must we take the word of the police when they assert

they made no threats and inducements to obtain a waiver and

ultimately a confession? The real interrogation process would

have remained unknown but for the tape recording of the

interrogation of Michael White. In truth, Respondent Jackson

was likely to have waived his rights only when he was con-

vinced that “cooperation” was his “only hope.”

The accuracy of alleged statements also suffers under police

control. Where judges and juries must rely on the notes and

memories of police officers, key evidence bearing on such diff-

cult issues as the difference between manslaughter and murder

28 It is interesting to compare the techniques used in Respondent's

case with those described in the police interrogation manuals quoted

in Miranda, supra. For example, in Inbau & Reid, Criminal Inter-

rogation and Confessions (1962), at 111, cited at 384 U.S. 454, the

authors suggested the following advice regarding the right to silence:

“Joe Peay have a right to remain silent. That’s your privilege and

I’m the last person in the world who'll try to take it away from

you. If that’s the way you want to leave this, O.K. But let me ask

you this. Suppose you were in my shoes and I were in and

you called ane in to-aeh me chews ane err ‘I don’t want

to answer any of your questions.’ You’d think I had something to

hide and you'd probably be right in thinking that. That's exactly

what I’ll have to think about you, and so everybody else. So

let’s sit here and talk this whole thing over.”

or between aiding and mere presence often takes a decided

shift toward the inculpatory. This is hardly surprising when the

accused's statement with few exceptions, is elicited in the spirit

of “nailing” the accused on the highest charge and later related

to the fact-finder in a feigned spirit of impartiality with all

professional skill and “police-speak” detectives of more the 20

years can muster. See fn. 13, supra. In Jackson’s case where

tapes of his statements were eventually made, the likelihood of

inaccuracy of the statement itself is admittedly reduced. But

even here, the critical first dialogue bearing on the waiver of

rights is missing.

A rule allowing post-arraignment waiver of the right to

counsel after examination by a neutral magistrate or with

counsel's advice”? would be consistent with this Court's prior

decisions. This Court has recognized that the right to counsel

at this stage is clearly precious. See Part B, supra. Tradi-

tionally, waiver of the right to counsel has been a matter for a

neutral judicial officer. See Part C, supra. Practically, a pro-

phylactic rule would advance our criminal justice system. First

unlike eyewitness identification, police reliance on confessions

at the post-arraignment stage is unhealthy and unnecessary. *°

2° New York has established a rule requiring the cessation of any

post-arraignment questioning unless an attorney is present and

counsels the accused at the time of waiver. People v. Cunningham,

424 NYS 2d 421, 424; 49 N. Y.2d 203; 400 N.E.2d 360 (1980). Michigan

has already recognized the efficacy of appointing counsel at the pre-

indictment stage. Although an equally divided United States

Supreme Court declined to take such a step, Kirby v. Illinois, supra,

the Michigan Supreme Court, without dissent, held that an accused

is Constitutionally entitled to counsel at pre-indictment identification

procedures. People v. Anderson, 389 Mich. 155, 171-172, 186-187; 205

N.W.2d 461 (1973). As a result of this decision Wayne County, at least,

has instituted a practice »f having an appointed lineup counsel on call

in the event the police choose to assemble a lineup for identification of

an in-custody accused.

3° In Escobedo v. Illinois, supra, 378 U.S., at 488-489, Justice

Second, hundreds of years of judicial history suggest that

confessions are far less reliable than juries will believe.*!

Finally, lack of guidelines for police interrogation procedures

breeds extensive litigation and disrespect for law. The police

themselves may be victims as they are pressured to justify the

violation of established Court rules to induce a confession and

later are tempted to perjure themselves to validate the con-

fession. The accused and others involved in these matters who

witness such police misconduct find it difficult to support the

criminal justice system in such an atmosphere of deceit. And

Goldberg wrote:

“We have learned the lesson of history, ancient and modern, that

a system of criminal law enforcement which comes to depend on

the ‘confession’ will, in the long run, be less reliable and more

a to abuses than a system which —— on extrinsic

evidence independently secured through ski investigation.

** *

“This Court also has recognized that history amply shows that

confessions have often been extorted to save law enforcement

officials the trouble and effort of rr and independent

evidence.... H v. Washington, U.S. 508, 519; 83

S.Ct. 1336; 10 L.Ed.2d 513.

“We have also learned the companion lesson of history that no

system of criminal justice can, or should, survive if it comes to

depend for its continued effectiveness on the citizens’ abdication

through unawareness of their constitutional rights. No system

worth preserving should have fear that if an accused is permitted

to consult with a lawyer, he will become aware of exercise,

these rights. If the exercise of constitutional rights will thwart

the effectiveness of a system of law enforcement, then there is

something very wrong with that system.” (footnotes omitted).

31 Confessions have traditionally been excluded as unreliable if

“extracted by any sort of threats or violence, [or] obtained by direct

or implied promises, however slight, [or] by the exertion of any

improper influence”. Bram v. United States, 168 U.S. 532, 542-543;

18 S.Ct. 183; 42 L.Ed. 568 (1897). See also, the historical analysis in

Bram, at 542-561. Scientific analysis also indicates that confessions,

even where obtained voluntarily, are less reliable than a lay jury

would assume. Kassin, S.M. & Wrightsman, LS., Coerced Con-

fessions, Judicial Instruction, and Mock Juror Verdicts, Journal of

Applied Social Psychology, 1981, 11, 6, pp. 489-506.

Practically speaking, when Robert Jackson exercised his

right to counsel at arraignment, it is likely that his appreciation

of the value of counsel differed very little from when the

Livonia Police advised him. The magistrate at arraignment did

not expound on counsel's value, he simply noted that Jackson

had petitioned for counsel. The reasonable conclusion to be

drawn is not that Robert Jackson was exercising a mere for-

mality.*? Jackson, as he had from the time of his arrest, was

seeking every opportunity to preserve his freedom. When

dependent upon police advice, the right to counsel, like the

right to remain silent, was flim-flammed away as an obstacle to

a deal. But when formally offered without the strings attached

by police, the right to counsel was quite naturally embraced.

Robert Jackson's formal request for counsel at arraignment

was a request for the assistance of counsel against the “pros-

ecutorial forces of organized society” in all forums and forms

where the State would seek to incriminate and convict. The

State should not be permitted to circumvent this unequivocal

request in open court by merely extending the same station-

house Miranda advice which the Livonia Police could so neatly

explain away in subsequent discussions about what these

rights “really mean” to the defendant. The Livonia police

should not be the ones*4 who say whether Respondent Jackson

waived a right asked for and given in open court, which they

think stands between them and wrapping up a conviction.

Under any recognized standard, the prosecution cannot estab-

lish a valid waiver of Robert Jackson's right to counsel. Jack-

33 As was stated by Mr. Justice White, concurring in Michigan v.

Mosley, 423 U.S. 96, 110; 96 S.Ct. 321; 46 L.Ed.2d 313 (1975):

“(The accused having expressed his own view that he is not compe-

tent to deal with the authorities without legal advice, a later decision

at the authorities insistence to make a statement without counsel's

presence may properly be viewed with skepticism.”

34 “Sed quis custodiet ipsos Custodes? (But who is to guard the

guards themselves?) Decimus Junius Juvenal. c. 50-130 A.D., Bar-

lett, Jr.. Familiar Quotations, p. 139.

son’s post-arraignment confession must be suppressed and the

judgment of the Michigan Supreme Court affirmed.

CONCLUSION AND RELIEF

Once adversary proceedings have formally begun, custodial

police interrogation is presumptively accusatory rather than

investigatory. Police, as agents of the prosecutorial forces of

the State, should not be engaged in attempting to advise an

accused whether to waive precious constitutional rights which

virtually no lawyer would advise be waived. This Court should

hold that the right to counsel is not valid unless made pursuant

to judicial examination or in the presence and with the advice of

counsel.

WHEREFORE, for the reasons stated in Respondent’s

Brief, Respondent respectfully requests that this Honorable

Court dismiss the Petition for Writ of Certiorari as improvi-

dently granted or, in the alternative, affirm the judgment of the

Michigan Supreme Court.

Respectfully submitted,

STATE APPELLATE DEFENDER OFFICE

By:

JAMES KROGSRUD

(Appointed by this Court)

Assistant Defender

Third Floor, North Tower

1200 Sixth Avenue

Detroit, Michigan 48226

(313) 256-2814

Counsel for Respondent Jackson

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