# Respondents Brief — Michigan v. Jackson

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0317%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 625

## Text

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,
v.

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

my

i

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?

ii

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

iv

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

Vv

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

vi
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)...

38
United States v. Henry, 447 U.S. 264; 100 S.Ct. 2183; 65

I SE ee ee 29, 33

26

38

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.

2

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

3

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-

4

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.

5

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).

6

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.

7

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).

8

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).

9

“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?

10

“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-

ll

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

12

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

13

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.

14

“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

15

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).

16

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-

17

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.

18

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:

19

“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.

20

“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.

21

“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-

22

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,

23

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.

24

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

25

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).

26

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.”

27

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

28

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

29

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.

30

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).

31

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

32

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.

33

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
judicial proceedings en a © } Sane
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.

34

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).

35

‘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).

36

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?

37

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

38

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].

39

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-

40

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

41

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

42

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.”

43

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 °

44

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.”

45

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

46

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.

48

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.

49

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0317%3A7. Public record. Not legal advice.