Reply Brief — Minnick v. Mississippi

Supreme Court, U.S.

ms rEL S&B

§-> 2/ 1990

No. 89-6332

IN THE

Supreme Court of the United States

Octoser Term, 1990

ROBERT S. MINNICK,

Petitioner,

v.

STATE OF MISSISSIPPI,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

REPLY BRIEF FOR PETITIONER

Curve A. STAFFORD SMITH FLOYD ABRAMS*

SOUTHERN PRISONERS’ ANTHONY PADUANO

DEFENSE COMMITTEE JuprrH A. ARCHER

85 Poplar Street, N.W. Kevin L. THURM

Atlanta, Georgia 30303 CAHILL GORDON & REINDEL

(404) 688-1202 (a partnership including

professional corporations)

80 Pine Street

New York, New York 10005

(212) 701-3000

Attorneys for Petitioner

Robert S. Minnick * Counsel of Record

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES............

PRELIMINARY STATEMENT.................

IEE ov SOWA SEKKccerenedarecccesecaecs

I. MINNICK’S CONVICTION WAS

OBTAINED IN VIOLATION OF THE

FIFTH AMENDMENT ....................

A. Edwards v. Arizona Controls This Case

And Mississippi's Interpretation Does Not

Comport With This Court's Precedents __.

B. The New Rule Proposed By The United

States Is Without Independent Support

And Would Eliminate Bright-Line Rules

ES a eae ee

Il. MINNICK’S CONVICTION WAS

OBTAINED IN VIOLATION OF THE

SIXTH AMENDMENT ....................

Before This Court......................

B. Michigan v. Jackson Mandates Reversal Of

Minnick’s Conviction ...................

C. Minnick’s Sixth Amendment Right To

Counsel Attached Before Deputy Denham

Reinitiated Interrogation................

EE eet Oe etet Ce dics tua eich

1]

1]

12

14

TABLE OF AUTHORITIES

Cases Page

Arizona v. Mauro, 481 U.S. 520 (1987) ......... 8n

Arizona v. Roberson, 486 U.S. 675 (1988) ....... 4n, 8n,

9n

Brewer v. Williams, 430 U.S. 387 (1977) ........ 13, 15n

Coleman v. Alabama, 399 U.S. 1, 9 (1970) ...... 16

Connecticut v. Barrett, 479 U.S. 523 (1987) ..... 7n

Corley v. Mississippi, 536 So. 2d 1314 (Miss.

EEE EE 16

Duncan v. Louisiana, 391 U.S. 145 (1968)....... 16n

Edwards v. Arizona, 451 U.S. 477 (1981) ....... passim

Fare v. Michael C., 442 U.S. 707 (1979) ........ 5n, 8n

Felder v. McCotter, 765 F.2d 1245 (5th Cir.

1985), cert. denied, 475 U.S. 111 (1986) ...... 16n

Hamilton v. Alabama, 368 U.S. 52 (1961) ....... 16

Illinois v. Perkins, 110 S. Ct. 2394 (1990) ....... 7n

Iowa v. Newsom, 414 N.W.2d 354 (Iowa 1987) .. 9n

Irvine v. California, 347 U.S. 128 (1954)........ 12

Jimpson v. Mississippi, 532 So. 2d 985 (Miss.

ees occ c cece cscccsccsccc 15n, 17n,

19n

Johnson v. Zerbst, 304 U.S. 458 (1938).......... 6n

iv Vv

Page Page

Judd v. Vose, 813 F.2d 494 (Ist Cir. 1987) ...... 17n Nicholson v. Mississippi, 523 So. 2d 68 (Miss. =

Ns 6 5-a5s eM ee ee eee ee a ee ee bd hc 15n, 17n

Kirby v. Illinois, 406 U.S. 682 (1972) ........... 15, 15n Oregon v. Bradshaw, 462 U.S. 1039 (1983) ..... 5n, 6, 10n,

lin

Koza v. Nevada, 102 Nev. 181, 718 P.2d 671 Pee pouee

RC) :) 9n Page v. Mississippi, 495 So. 2d 436 (Miss. 1986)... 17n, 18

Patterson v. Illinois, 487 U.S. 285 (1988) ........ 4n, 14

Livingston v. Mississippi, 519 So. 2d 1218 (Miss. ( ,

RD o.oo 656-060 24e6wsanesreadagidheanenats 17n, 19n Patterson v. New York, 432 U.S. 197 (1977) .... 16n

Maine v. Moulton, 474 U.S. 159 (1984) ......... 13, 13n, Rhode lefend 0. tants, 446 U.S. 391 (1680) ...... aad

14 Roper v. Georgia, 258 Ga. 847, 375 S.E. 2d 600,

cert. denied, 110 S. Ct. 290 (1989) ........... 9n

Massiah v. United States, 377 U.S. 201 (1964) ... 13, 13

2 ae ee vy : Shea v. Louisiana, 470 U.S. 51 (1985) .......... Sn

McMillan v. Pennsylvania, 477 U.S. 79 (1976) ... 16n Smith v. Illinois, 469 U.S. 91 (1984) ............ 9n, 10,

| 10n, 11n

Meadows v. Kuhlmann, 812 F.2d 72 (2d Cir.),

cert. denied, 428 U.S. 915 (1987) ............ 16n Solem v. Stumes, 465 U.S. 638 (1984)........... 5n

9 South Carolina v. Grizzle, 293 $.C. 19, 358

Michigan v. Harvey, 110 S. Ct. 1176 (1990) ce eees 12, 13n, S.E.2d 388 (1987), cert. denied, 484 U.S. 1012

14

NE Re IR inert ae a ee eae 9n

Michigan v. Jackson, 475 U.S. 625 (1986) ....... passim South Dakota v. Cody, 323 N.W.2d 863 (S.D.

GSe x ony tne hah s anes es tend edeness 9n

ichi ’ S. RS 5n, 8

Michigan 0. Mestey, 453 U.S. 88 (1976) . United States v. Bentley, 726 F.2d 1124 (6th Cir.

Miranda D. Arizona, 384 U.S. 436 (1966) a a passim 1984) Seeece ee eeeenweeseeeaeeeeaeseeseease@2@ ee &6e8 0 6 6 6 6 6 3n

United States v. Gouveia, 467 U.S. 180 (1984) ... 17n

Moore v. Illinois, 434 U.S. 220 (1977) .......... 16, 18

United States v. Guido, 704 F.2d 675 (2d Cir.

Moran v. Burbine, 475 U.S. 412 (1986) ......... 5n ee eT Tere rT ee nnn 17n

Unit ' : ir.

Neuschafer v. McKay, 807 F.2d 839 (9th Cir. nited States v. Hall, 905 F.2d 959 (6th Cir

RR ere Ca OS 9n, 10n

6040500 cebns cons eshbbokousssantebeus lln

United States v. Halliday, 658 F.2d 1103 (6th

New Hampshire v. Dedrick, 564 A.2d 423 (N.H. Cir.), cert. denied, 454 U.S. 1127 (1981)... .. 3n, 9n,

1989), cert. denied, 110 S. Ct. 1305 (1990) .... 10n 10n

Unites States v. Pace, 833 F.2d 1307 (9th Cir.

1987), cert. denied, 486 U.S. 1011 (1988) .....

Unites States ex rel. Burton v. Cuyler, 439 F.

Supp. 1173 (E.D. Pa. 1977), aff'd without

opinion, 582 F.2d 1278 (3d Cir. 1978) ........

United States ex rel. Dove v. Thieret, 693 F.

es Tee ere

United States ex rel. Espinoza v. Fairman, 813

F.2d 117 (7th Ci- ,, cert. denied, 483 U.S.

ETS”, fa hee nele oes Serr a

United States ex rel. Sanders v. Rowe, 460 F.

MP Pree rrr

White v. Maryland, 373 U.S. 59 (1963) ..... ...

Constitutional Provisions

Mississippi Constitution

United States Constitution

I kc 3 0 KA Od Ke ee

EE WE a5 c0s8c i Ridnedtakwewbanuaaes

Rules

U.S. Supreme Court Rules

EO ee errr PE ae

PR iccckeonvisaseeaenans errr err.

16n

15n

9n

16n

16

Statutes

Mass. Ann. Laws ch. 263, 64 (Law. Co-op. 1980

EE MINS Su Add o buenos anes cuchauseeecs

Miss. Code Ann.

cc. Cn od iwin waa cuweue hath aen

Miss. Code Ann. § 99-17-1 (Supp. 1985) ........

Other Authorities

FBI, Legal Handbook for Special Agents (1990) ..

Schulhofer, Reconsidering Miranda, 54 U. Chi. L.

Rev. 435 (1987) o.oo occ ccc cece cece cece.

Page

3, 3n

10n

IN THE

Supreme Court of the United States

Octoser Term, 1990

No. 89-6332

——a D> ©. <a ese

ROBERT S. MINNICK,

Petitioner,

v.

STATE OF MISSISSIPPI,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

REPLY BRIEF FOR PETITIONER

PRELIMINARY STATEMENT

At the core of this appeal is the right of an accused to have

his counsel present at a custodial interrogation when he has

asked that counsel be there. That such a request was made by

Robert Minnick is indisputable: the FBI report itself quotes

Minnick as requesting his lawyer's presence at any

reinterrogation (Minni2k “stated that he would make a more

complete statement [on Monday] with his lawyer present”

(JA 16)).' Nor can any serious argument be offered that Minnick

' Mississippi seeks to transform Minnick’s statement to the FBI that he would

speak further with them with his counsel present into an open-ended

“invitation” to the “authorities to come and speak with him again [ which}

Deputy Denham acceptec” (Brief of Respondent, “Miss. Br.,” at 34). As

Mississippi recognizes elsewhere, however, the “invitation” was predicated

on having Minnick’s attorney present (Miss. Br. at 23).

reinitiated discussions with the authorities: the record is plain,

and the Mississippi Supreme Court has held, that “[w)hen

Denham arrived at the jail, the jailers told Minnick that he would

have to go down ari talk with Denham” (JA 74; see also 45).

Because it is undeniable that Minnick: (a) asked for counsel

when the FBI interrogated him (JA 15-16): (b) stated that he

would speak again with the authorities “with his lawyer present”

(id.); and (c) was required to meet with Deputy Denham without

his counsel present after his jailers told him that he was obliged

to “talk” with Denham (JA 45, 47, 74), the question thus posed

is whether, under these circumstances, it can possibly be deemed

consistent with this Court's ruling in Edwards v. Arizona, 451

U.S. 477 (1981) for inculpatory statements allegedly made by Min-

nick to Deputy Denham to have been introduced against him.

Both Mississippi and the United States, as amicus curiae, seek

to deal with this question by avoiding it. Mississippi (and the

Mississippi Supreme Court ruling it defends) urges that Edwards

should be read to provide that the police are only required to

alle » the accused the chance to “consult” with counsel before

the State is free to reinitiate interrogation (Miss. Br. at 1)-18).

The United States’ approach is to frame the ultimate issue before

the Court as whether the rule of Edwards should be “extended”

to prohibit the police from reinitiating contact with an accused

whose invocation of his right to counsel has been honored (Brief

of the United States as Amicus Curiae Supporting Respondent,

“U.S. Amicus Br.,” at 8). But the issue here is the far simpler one

of whether an accused who has indicated his desire to deal with

the police only through counsel — and specifically requested the

presence of counsel — may be reinterrogated without counsel

actually being present and have statements then extracted from

him used against him.

The negative answer to that question is not only contained

within Edwards itself, but also in Miranda v. Arizona, 384 U.S.

436 (1966), and has frequently been reiterated in decisions of this

Court. In response, the United States argues for a radically new

rule — one unsupported by citation to any decision of this Court

— that eradicates much of the painstaking work of this Court

to assure the implementation of the protections afforded an ac-

cused by the Fifth Amendment. The rule would provide that after

an accused invokes his right to counsel and interrogation has

ceased, the police may then return — without notice or invita-

tion — to inquire whether the accused has spoken with counsel:

if he has, the police may “engage in a second interview if, after

again being advised of his/her Miranda rights, the accused agrees

to waive these rights and speak with the [authorities]” (U.S.

Amicus Br. at 2 n.l, quoting FBI, Lega’ Handbook for Special

Agents § 7-4.1(5) at 84 (1990); see also U.S. Amicus Br. at 16).

There simply is no basis in the precedents of this Court for such

a rule. Nor is there any sound policy reason requiring adoption

of the United States’ proposal to reconsider and re-write the body

of the Fifth Amendment precedents in this area.

* We respond throughout this brief to the substantive position of the United

States. We note, however, that because Minnick had an attorney, ‘!:e reinitiated

interrogation of Deputy Denhe.m is inconsistent even with the requirements

set forth in the FBI's Legal Handbook for Special Agents:

“If the person being interviewed has already retained counsel, the warn-

ing must be that the accused has a right to have that specific person

present. Persons under arrest should be specifically asked as to whether

counsel has been retained or appointed. When showing on the FD-395

or the FD-302 (if form is not used) that the warning was given, it must

clearly appear that the interviewing Agent advised the accused of his/her

right to the presence of his/her counsel already retained, and that the

accused voluntarily waived the presence of that person.” (Handbook,

§ 7-3.4, at 82.01; emphasis supplied)

Notwithstanding Mississippi's assertion (Miss. Br. at 25 n.7), Minnick was not

asked if he had counsel and was not advised that he had a right to have his

counsel present at the reintey zation coaducted by Deputy Denham (JA

28-29). In fact, Minnick’s uncontroverted testimony was that he was told by

his jailers that his attorney was “nothing” (JA 47) and that he was obliged,

against his will, to meet with and “talk” to Deputy Denham (JA 45, 47).

We also note that, notwithstanding the language in the Handbook cited by

the United States, the FBI has demonstrated its ability to adhere to the con-

stitutionally compelled norms required by Edwards. In United States v. Halli-

day, 658 F.2d 1103, 1104 (6th Cir.), cert. denied sub nom, Frank v. United

States, 454 US. 1127 (1984), for example, a case cited by the United States

in support of its new rule, the FBI asked counsel's permission to reinterview

his client. In United States v. Bentley, 726 F.2d 1124. 1126 (6th Cir. 1984),

the FBI Agent contacted the accused's counsel to “arrang{e} a time” to inter-

view the accused. And in this case, the FBI discontinued its interrogation of

Minnick when he stated that he wanted counsel's presence and it did not

reinitiate contact with him (JA 16).

Mississippi and the United States choose avoidance in response

to Minnick’s argument that Deputy Denham’s interrogation

violated his Sixth Amendment rights. The suggestion that Min-

nick may not argue that his conviction and death sentence of-

fend the Sixth Amendment because the Sixth Amendment was

not specifically cited in Minnick’s “Question Presented” in his peti-

tion tur a writ of certiorari is not only based upon a tortured mis-

reading of the question — which refers by name to no amendment

but fairly encompasses both the Fifth and Sixth Amendments

— but wholly ignores Mississippi's previously quite lucid under-

standing of the scope of the Question Presented in the petition

for certiorari as raising both Fifth and Sixth Amendment issues.

As for the merits, Mississippi attempts to retreat from its earlier

admission — as well as the plain holding of its Supreme Court

— that Minnick’s Sixth Amendment right to counsel had attached

prior to the time of Deputy Denham’s interrogation (JA 68, 76).

There is no basis for Mississippi's change of position and thus no

basis at all for avoiding the force of Michigan v. Jackson, 475

U.S. 625 (1986), which requires reversal of the ruling below.

ARGUMENT

I. MINNICK’S CONVICTION WAS OBTAINED IN

VIOLATION OF THE FIFTH AMENDMENT

A. Edwards v. Arizona Controls This Case And Mississippi's

Interpretation Does Not Comport With This Court's

Precedents

This Court has consistently held that an indispensable safe-

guard for the protection of the Fifth Amendment privilege against

compelled self-incrimination is the right to have counsel present

at any custodial interrogation.’ No decision of this Court supports

’ E.g.. Arizona v. Roberson, 486 U.S. 675, 680 (1988) (“[t}he rule of the Ed-

wands case came as a corollary to Miranda's admonition that ‘if the individual

states that he wants an attorney, the interrogation must cease until an attorney

is present’); Patterson v. Illinois, 487 U.S. 285, 291 (1988) (accused's right

to communicate with police only through counsel is the “essence of Edwards

and its progeny”); Michigan v. Jackson, 475 US at 629 (“[t}he Fifth Amend-

self-incrimination the right to

ment protection against compelled a

the argument that, once an accused facing custodial interroga-

tion has invoked the right to counsel and sought counsel's presence.

anything other than counsel's actual presence is sufficient to pro-

tect the Fifth Amendment privilege.‘

Deputy Denham’s reinterrogation of Minnick after Minnick

invoked his right to have counsel present violated the Edwards

rule. To avoid Edwards’ bright-line proscription, Mississippi must

counsel at custodial interrogations”); Moran v. Burbine, 475 US. 412. 423 n.1

(1986) (Fifth Amendment right tu counsel requires police to “honor his re-

quest that the interrogation cease until his attorney is present”); Shea v. Loui-

siana, 470 U.S. 51, 52 (1985) (“[i]n Edwards v. Arizona, .__ this Court ruled

that a criminal defendant's rights under the Fifth and Fourteenth Amend-

ments were violated by the use of his confession obtained by police-instigated

interrogation — without counsel present — atter he requested an attorney”):

Solem v. Stumes, 465 U.S. 638, 646 (1984) (“[bjefore and after Edwards a

suspect had a right to the presence of a lawyer”); Oregon v. Bradshaw, 462

U.S. 1039, 1043 (1983) (plurality) (Op. of Rehnquist, J.) (“ijn Edwards _.

[w]e held that subsequent incriminating statements made without his attorney

present violated the rights secured to the defendant by the Fifth and Four-

teenth Amendments”); Edwards v. Arizona, 451 U.S. at 485 (“Miranda itself

indicated that the assertion of the right to counsel was a significant event and

that once exercised by the accused, ‘the interrogation must cease until an at.

torney is present.’ Our later cases have not abandoned that view”); Rhode Island

v. Innis, 446 U.S. 291, 297 (1980) (Fifth Amendment privilege against com-

pelled self-incrimination includes the Miranda warning “'that he has the right

to the presence of an attorney’”); Fare v. Michael C., 442 U.S. 707, 719 (1979)

(Miranda held that “the right to have counsel present at the interrogation

is indispensable to the protection of the Fifth Amendment privilege’”);

Michigan v. Mosley, 423 U.S. 96, 104 n.10 (1975) (Miranda “distinguished be-

tween the procedural safeguards triggered by a request to remain silent and

4 request for an attorney and directed that ‘the interrogation must cease until

an attorney is present’ only ‘[i)f the individual states that he wants an at-

torney’”); Miranda v. Arizona, 384 U.S. at 474 (“[i}f the individual states that

he wants an attorney, the interrogation must cease until an attorney is present”)

* Minnick’s conviction may be reversed without addressing the reconsidera-

tion of the Edwards rule urged by Mississippi and the United States. Itself

sufficient is the Mississippi Supreme Court's factual finding that when Depu-

ty Denham appeared at the San Diego jail “the jailers told Minnick that he

would have to go down and talk” (JA 74; see also 45). Edwards v. Arizona.

451 US. at 490 (Powell & Rehnquist, JJ., concurring) (when a suspect is “taken

from his cell against his will and subjected to renewed interrogation — .. it

clearly was questioning under circumstances incompatible with a voluntary

waiver of the fundamental right to counsel”). This critical fact of coercion

is never adverted to by Mississippi or the United States.

demonstrate that Minnick “initiated” communications with the

authorities. 45] U.S. at 485, 486 n.9. That Mississippi simply can-

not do in a case in which Deputy Denham went to the San Diego

County jail to interrogate Minnick who, in turn, was told by his

jailers (as the Mississippi Supreme Court concluded) “that he would

have to go down and talk to Denham” (JA 74; see also 45; Miss.

Br. at 25). This case is thus in stark contrast to ones in which the

police and the accused were already in the other's presence and

difficult issues were raised as to who “reinitiated” communications.

Compare Oregon v. Bradshaw, 462 U.S. 1039, 1045 (1983) (plurality)

(Op. of Rehnquist, J.) (conversation occurred after the accused in-

voked his right to counsel while being transferred from the police

station and after his attorney gave the police permission to do so).

Here the record supports no conclusion other than that Deputy

Denham reinitiated the interrogation of Minnick and that in do-

ing so he violated Minnick’s Fifth Amendment rights.’

B. The New Rule Proposed By The United States Is Without

Rules Of This Court

Rather than accept the outcome prescribed by Edwards, the

United States proposes a new Fifth Amendment prophylactic rule

based on unsupported assumptions. The United States urges this

Court to read the heart out of Edwa:ds by permitting the police

to reinitiate interrogation of an accused who has specifically re-

quested the presence of counsel but has, when the reinterrogation

* Given Edwerds, issues of waiver need not be addressed by this Court. Con-

trary to Mississippi's assertion (Miss. Br. at 9), however, there was no holding

below that Minnick made a knowing, intelligent and voluntary waiver of his

Fifth Amendment rights (JA 75-76). Mississippi argues that Minnick’s subjec-

tive intent not to waive his rights (as illustrated by his mistaken belief that

if he did not sign a waiver of rights form nothing he said could be used against

him (Miss. Br. at 35-36)) should be translated into a finding that an effective

waiver was made (Miss. Br. at 3°). The law is to the contrary. E.g., Ed-

werds v. Arizona, 451 U.S. at 482 ; waivers of counsel must not only be volun-

tary, but must also constitute a knowing and intelligent relinquishment cr

abandonment of a known right or privilege” to be decided in each case depen-

ding on the subjective characteristics and intent of the accused), Johnaon v. Zerbsi,

304 US. 458, 464 (1938) (waiver requires “an intentional relinquishment or

abandonment”).

occurs, previously consulted with counsel who is not actually

y pre-

sent. Once an accused has merely spoken with counsel, the United

States suggests, “the potentially coercive i

pressures of custodia!

interrogation are dissipated” (U.S. Amicus Br. at 6).

The assumptions underlying the United States’ proposed new rule

created for no purpose other than to subj i

to the will of his amuniner, This stmesphow eerie tu one Codan

of intimidation.” Miranda v. Arizona, 384 US. at 457.’ The co-

ercive atmosphere of custodial interrogation exists therefore not

because an accused has not spoken with counsel but because

counsel is not present to offset the threatening power of the state.

See Rhode Island v. Innis, 446 U.S. 291, 299 (1980). This Court

long ago recognized the significant difference between mere con-

sultation and the presence of counsel in saf j

Amendment privilege. n safeguarding the Fifth

“Even preliminary advice given to the accused by his own

attorney can be swiftly overcome by the secret interrogation

process. Thus, the need for counsel to protect the Fifth Am-

endment privilege comprehends not merely a right to consult

with counsel prior to questioning, but also to have counsel

* Minnick’s clear declaration that he wanted his attorney ~ .

present” (JA 16

for any interrogation snot subject to interpretation. An accused's invocation

Miranda rights must be read literally both by the police and by review.

ing courts and the plain meaning of the accused's invocation governs. Connect-

pr mp 479 US. 523, 529 (1987) (“[iJnterpretation is only required

defendant's words, understood

etn ~ as ordinary people would under.

’ Illinois o. Perkins, 110 S. Ct. 2394, 2397 (1990), reiterated that custodial in-

present during any questioning if the defendant so desires.”

Miranda v. Arizona, 384 U.S. at 470 (citation omitted).*

No decision A ee La

atmosphere of custodial interrogation is } con-

sultation with counsel. Minnick was immersed in a coercive at-

mosphere, his previous request for his counsel's presence ignored

(JA 45, 74), his counsel demeaned by his jailers (JA 47), and his

express desire not to meet with Deputy Denham given no effect

(JA 45). To suggest, as the United States does (U.S. Amicus Br.

at 6, 9, 10, 11, 13), that the coercive atmosphere of interrogation

is dissipated in these circumstances simply because Minnick

previously met with counsel and was given a new set of Miran-

da warnings disregards the very concerns which motivated this

Court to establish the Edwards bright-line rule.

Adoption of the new rule proposed by the United States would

hardly provide the lower courts or the police with a “bright-line

rule. No concrete limitations are proffered and nothing in the

rule supplies a basis for judging the appropriateness of the number

of reinitiations, the conduct of the officers, or the extent of the

coercion. Unie Oh aie Go en ee Sa

the circumstances under which the prosecution may ex-

tract a statement is unclear, and would predictably be the sub-

ject of new and extensive in limine hearings — “Minnick” hear-

ings, we suppose — on an issue which now

none. Significantly, this Court has consistently held that the pro-

bability of an effective waiver in the absence of counsel is slim

once the accused has explicitly stated his desire to have counsel

present. See, e.g., Michigan v. Mosley, 423 U.S. 96, 110 n.2 (1975)

(White, J., concurring) (“the accused having expressed his own

* See also Arizona v. Mauro, 48] US. 520, 529-30 (1987) (Miranda and Edwards

prevent “government officials from using the coercive nature of confinement to

extract confessions that would not be given in an unrestrained environment”).

Fare vo. Michael C., 442 US. at 719 (right to have counsel present is based on

the “special ability of the lawyer to help the client preserve his Fifth Amend-

ment rights”).

* This Court has specifically stated that new Miranda warnings will not

~‘reassure’ a suspect who has been denied the counsel he has clearly requested

that his nghts have remained untrammeled” Arizona « Roberson, 486 US

at 686.

view that he is not competent to deal with the authorities without

legal advice, a later decision at the authorities’ insistence to make

a decision without counsel’s presence may properly be viewed

with skepticism”). Few admissible confessions are, therefore, likely

to result from the proposed new rule.

The rule offered by the United States would thus eviscerate

not only an accused's right to the presence of counsel but the

benefits of the bright-line rules establishing the prophylaxis of

protections for an accused’s Fifth and Sixth Amendment rights.”

Those benefits have been genuine. The Edwards rule, as routinely

applied by the police and the courts, has had all the predictable

advantages of a bright-line rule” To our knowledge, since Edwards

was decided the precise factual scenario in this case has arisen

in approximately one reported decision a year.” The police have

” E.g., Arizona v. Roberson, supra (applying Edwards bright-line rule to

separate investigations); Michigan v. Jackson, supra (applying Edwards bright-

line rule to the Sixth Amendment); Smith v. Illinois, 469 U.S. 91, 100 (1984)

(per curiam) (ac used’s post-request responses to further interrogation may

not be used to cast doubt on the clarity of the initial request).

" The United States takes issue with the statement that “‘{o)ther courts have

generally agreed that Miranda and Edwards forbid any state-initiated inter-

rogation without counsel present once the accused has requested that counsel

act as a medium between him and the government’” (U.S. Amicus Br. at 14.

quoting Pet. Br. at 15 n.12). Minnick has, however, consistently characterized

these statements as dictum (see Petition for Certiorari at 7 n.6; 8 n.8: 9 n.12:

ll n.13), which makes them no iess persuasive as statements of the courts’

holdings. This precise issue has nct «.isen frequently for the very reason that

law enforcement officers have applied the rule of Edwards and not reinitiated

interrogation after the accused has invoked his right to counsel.

° The parties more or less agree that these cases are, on one hand, United

States ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir.), cert. denied, 483

U.S. 1010 (1987); Roper v. Georgia, 258 Ga. 847, 375 S.E.2d 600, cert. denied.

110 S. Ct. 290 (1989); Jowa v. Newsom, 414 N.W.2d 354 (lowa 1987); Koza

v. Nevada, 102 Nev. 181, 718 P.2d 671 (1986); and, on the other, United States

v. Hall, 905 F.2d 959 (6th Cir. 1990); United States v. Halliday, 658 F.2d 1103

(6th Cir.), cert. denied, 454 U.S. 1127 (1981); South Carolina v. Grizzle, 293

S.C. 19, 358 S.E.2d 388 (1987), cert. denied, 484 U.S. 1012 (1988); South Dakota

v. Cody, 323 N.W.2d 863 (S.D. 1982). Two of the decisions relied on by the

United States support Minnick’'s reading of Edwards. In United States v. Hall.

supra, the Edwards issue arose in the context of reinterrogation on a charge

(Footnote continued)

10

apparently found the rule simple to understand and easy to apply

and alleged violations of Edwards have been rare.”

In the end, the proposed new rule is nothing but a thinly-veiled

attempt to shift the burden of knowing and following the law

from the police to the accused, thus leaving the police in a posi-

tion to exploit the absence of counsel. See Smith v. Illinois, 469

USS. at 98 (absent bright-line protection, police may exploit subtle

distinctions in the law to persuade an accused to incriminate

himself). The proper result is simple: because the Edwards rule

is not broken, the invitation to fix it should be declined.”

other than the one for which the accused invoked his Fifth Amendment right

to counsel. As to the initial charge of escape, regarding which the accused

had counsel, the court stated that “Hall's fifth amendment right against self-

incrimination was protected.” Id. at 963. In United States v. Halliday, supra,

the FBI agents contacted the person they believed to be the accused's attorney

for permission to reinterrogate the accused. The attorney, although not yet

the attorney of record, indicated he had no objection but referred the agents

to the attorney of record. Rather than do that, the agents obtained the accused's

acknowledgment that the first attorney was his lawyer, that he did not want

counsel appointed, and that he would waive his rights.

“ The United States makes the unsupported assertion that if a cost-benefit

analysis is applied, the proposed new rule should supplant Edwards in the

interest of extracting more confessions. The reality is that statistical data on

the effect of Miranda show no impairment to obtaining convictions. See

Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 460 (1987) (“[t)he

failure to turn up evidence of at least some negative impact [of Miranda] pro-

vides a striking demonstration of the paucity of such evidence and in effect

strongly reinforces the prevailing wisdom that Miranda has not posed a signifi-

cant barrier to effective police work”).

“ Contrary to the United States’ belief (U.S. Amicus Br. at 14-16), lower courts

have had little difficulty comprehending and applying Edwards. E.g., New

Hampshire v. Dedrick, 564 A.2d 423, 433 (N.H. 1989) (Thayer and Souter, JJ.,

dissenting), cert. denied, 110 S. Ct. 1305 (1990):

“(T]he Supreme Court has consistently recognized the value of a pro-

phylactic ‘bright-line’ prohibition of police-initiated questioning after

the defendant has invoked his right to counsel. See, e.g., Smith v. Il-

linois, 469 U.S. 91, 98, 105 S. Ct. 490, 494, 83 L. Ed. 2d 488 (1984);

Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S. Ct. 2830, 2834, 77

L. Ed. 2d 405 (1983); Edwards v. Arizona, 451 U.S. 477, 486 n.9, 101

S. Ct. 1880, 1885 n.9, 68 L. Ed. 2d 378 (1981) (following a request for

counsel, the accused and not the police must reopen dialogue with the

(Footnote continued)

11

Il. MINNICK’S CONVICTION WAS OBTAINED IN

VIOLATION OF THE SIXTH AMENDMENT

A. The Sixth Amendment Issue Is Properly Before This Court

Mississippi maintains that Minnick’s petition for certiorari did

not raise a claim under the Sixth Amendment, that Minnick’s

arguments rooted in the Sixth Amendment are presented for the

first time in his brief on the merits and that they thus should

not be considered (Miss. Br. at 40). To the contrary, Minnick’s

Sixth Amendment arguments that his conviction is invalid were

made throughout this case: at trial (R. 347-48) and on direct ap-

peal (Appellant's Brief to Mississippi Supreme Court, “Appellant's *

Br.,” at 1, 12-14; Reply Brief of Appellant at 1-3; Appellant's Sup-

plement: Brief at 2, 6-17).

The Question Presented in Minnick’s petition for certiorari ex-

plicitly refers neither to the Fifth nor Sixth Amendment. Encom-

passing both amendments — in the context of a petition from

a ruling which dealt with both amendments — it stated:

“Whether, once an accused has expressed his desire to deal

with law enforcement officers only through counsel, the

police may reinitiate interrogation in the absence of counsel

as soon as the accused has completed one consultation with

a lawyer?” :

The Question Presented in Minnick’s brief on the merits is not

a verbatim quotation of that found in his petition for certiorari.

authorities). Absent such a rule, the police ‘through “badger| ing)” or

“overreaching” — explicit or subtle, deliberate or A Ms

otherwise wear down the accused and persuade him to incriminate

himself notwithstanding his earlier request for counsel's assistance.’ Smith

v. Illinois, supra (quoting Oregon v. Bradshaw, supra).”

See also Neuschafer v. McKay, 807 F.2d 839, 840 (9th Cir. 1987) (per Ken-

nedy, J.) (“after he requested a lawyer and none was provided . . . [u}nder

Edwards, Neuschafer's confession was illegally obtained unless, first, he ini-

tiated the interview that ied to the confession and, second, knowingly and

intelligently waived his right to counsel”; remanding case for determination

on the initiation issue).

* Similarly, the United States puts the Question Presented as: “Whether law

enforcement officers may reinitiate custodial interrogation after a suspect has

invoked his right to counsel and consulted with a lawyer” (U.S. Amicus Br. at !).

12

But it neither “raise[s] additional questions” nor “change[s] the

substance of the questions already presented,” Sup. Ct. R. 24.1(a).

Furthermore, “phrasing of the questions presented [in the peti-

tion and the brief on the merits] need not be identical.” Jd. In-

deed, it is entirely proper to rephrase points in order to state them

more clearly or accurately.

The rationale for limiting review to “[o)nly the questions

set forth in the petition [for certiorari], or fairly included

therein,” Sup. Ct. R. 14.l(a), was made clear by this Court's

admonishment that it “disapprove[s] the practice of smuggling

additional questions into a case after [the Court) grant(s]

certiorari.” Irvine v. California, 347 U.S. 128, 129 (1954).

No such “smugg!’:.¢” has occurred here, nor was any intended.

In fact, Mississippi's argument is more than a bit disingenuous.

The State well understood the purport of the petition for cer-

tiorari upon its receipt. Its own restatement of the issues raised

by the petition in its brief opposing the grant of a writ read as

follows: “Petitioner's Fifth and Sixth Amendment rights were not

violated by the admission of his confession into evidence” (Brief

in Opposition to Petition for Certiorari at i). Its own brief in op-

position to the petition for certiorari addressed the issue on the

merits (id. at 6-15). Moreover, the Sixth Amendment issue had

been — as Mississippi has acknowledged to this Court — passed

upon by the Mississippi Supreme Court (Miss. Br. at 42, 48 n.15;

JA 77). Minnixk’s petition for review encompassed a Sixth Amend-

ment claim, which shouid be considered on the merits by this

Court.

B. Michigan v. Jackson Mandates Reversal of Minnick’s

Convicti

In Michigan v. Jackson, 475 U.S. 625 (1986), this Court

transposed the prophylactic rule of Edwards to reinitiation of

interrogation once the Sixth Amendment attached and the

accused asserted his right to counsel. See also Michigan v.

Harvey, 110 S. Ct. 1176, 1180 (1990). For the same reasons

Mississippi's position offends the Fifth Amendment under

Edwards, it violates the Sixth Amendment because it would allow

police to reinitiate interrogation without counsel present

throughout critical pretrial stages, indeed, even up to the time

13

of trial itself’ Once the Sixth Amendment right to counsel

attaches the government is precluded from making any attempt

to elicit information from the accused without the presence of

counsel or a valid waiver of the right to have counsel present.

Maine v. Moulton, 474 U.S. 159; 176 (1985) (“Sixth Amendment

is violated when the State obtains incriminating statements

by knowingly circumventing the accused's right to have counsel

present in a confrontation between the accused and a state

agent”); Brewer v. Williams, 430 U.S. 387, 401 (1977) (“once

adversary proceedings have commenced against an individual,

he has a right to legal representation when the government

interrogates him”); Massiah v. United States, 377 U.S. 201,

206 (1964) (Sixth Amendment violated by introduction of de-

fendant’s incriminating statements “which federal agents had

deliberately elicited from him after he had been indicted and

in the absence of his counsel”). See also Michigan v. Jackson, 475

U.S. at 630"

As noted by Justice Robeftson dissenting below:

“[I)magine this scenario. The day before trial the district attorney, or

some representative of the prosecution force, . . . visits Minnick in his

jail cell. This is done without so much as a ‘By your leave’ or ‘Kiss my

foot’ to Minnick’s lawyer. The district attorney says, ‘Mr. Minnick, your

trial begins tomorrow, and there are a few points I want to clear up

before the trial begins.’ Assume then that the district attorney . . . reads

Minnick the standard Miranda warnings and without obtaining any ex-

press acknowledgment or waiver, written or oral, proceeds to ask Min-

nick questions, to which Minnick responds.” (JA 114)

Nothing in the interpretation offered by Mississippi or in the rule proposed

by the United States would preclude this scenaric.

" The United States argues thet the Edwards rule is only necessary to prevent

coercion during custodial interrogation where the accused has requested, but

not yet been afforded, the opportunity to consult with counsel (U.S. Amicus

Br. at 10-12). The effort of the United States to restrict Edwards effectively

asks the Court to undo Jackson. The bright-line rule enunciated by the Court

in Ja~kson is not limited to situations involving incarceration, an unrepresented

defendant, or even custodial interrogation. Michigan v. Harvey, 110 S.

Ct. at 1177 (involving a defendant already represented by counsel). See also

Maine v. Moulton, 474 U.S. at 176 (accused out on bail and already repre-

sented by and had consulted with counsel); Massiah v. United States.

377 U.S. at 202 (involving a defendant who was out on bail and had retained

a lawyer).

14

The Jackson rule protects the accused’s express desire to rely

on counsel in dealing with the state and sets forth the state's “af-

firmative obligation not to act in a manner that circumvents the

protections accorded the accused by invoking [the right to

counsel ].” Maine v. Moulton, 474 U.S. at 176. The holding in

Jackson that once an accused expresses his desire to have the

assistance of counsel, “the authorities’ interview with him would

have stopped, and further questioning would have been forbid-

den (unless petitioner called for such a meeting)” was reaffirmed

in Patterson v. Illinois, 487 U.S. 285, 291 (1988). Mississippi's

restrictive interpretation of Edwards — and tl.erefore Jackson —

would negate the states’ obligation to honor the accused’s request for

counsel at the same time it destroys the bright-line rule of Jackson.

Mississippi's argument that the Sixth Amendment was not

violated because Minnick “knowingly, intentionally and volun-

tarily” waived his right to counsel (Miss. Br. at 48 n.15) is not

serious. The argument deals with Jackson, Harvey and like

precedents by simply ignoring them. Deputy Denham’’s reinitia-

tion of interrogation after Minnick requested counsel violated

the rule of Jackson; thus Minnick could not, as a matter of Sixth

Amendment law, be deemed to have waived his right to counsel.

The Mississippi Supreme Court thus committed plain error in

conducting a traditional waiver analysis in light of ‘he Jackson

violation. There should have been no further inquiry.

C. Minnick 5 Sixth Amendment Right To Counsel Attached

Mississippi now attempts to retract its concession below that

Minnick’s Sixth Amendment right to counsel attached prior to

Deputy Denham’s interrogation (JA 68), as well as to take issue

with the ruling to that effect of the Mississippi Supreme Court

(JA 76).* Mississippi and the United States would impose upon

“ Mississippi would have this Court believe that it intended to admit only that

Minnick’s right to counsel had attached under the Mississippi Constitution

(Miss. Br. at 46 n.14). What Mississipni stipulated to below, however, was that

it was “evident that under Mississippi law, Minnick’s Sixth Amendment right

to counsel! had attached at the time of the interview” (JA 68). The only “Sixth

Amendment” either the State or its Supreme Court could have been referring

(Footnote continued )

the states a unified federal definition of the procedural point at

which state adversarial proceedings commence, and an accused's

Sixth Amendment right to counsel attaches (Miss. Br. at 45-48:

U.S. Amicus Br. at 18-22). These arguments misconstrue this

Court's precedents and ignore repeated pronouncements of the

Mississippi Supreme Court.

It is settled — and we do not dispute — that the ultimate deter-

mination of when the Sixth Amendment right to counsel attaches

is a matter of federal law. In defining the point of attachment,

this Court held in Kirby v. Illinois, 406 U.S. 682, 688 (1972)

(plurality), that the “Sixth and Fourteenth Amendment right to

counsel attaches only at or after the time that adversary judicial

proceedings have been initiated.” That determination, however,

is in turn governed by the answer to the question of when, under

applicable state or federal law, “adversary judicial proceedings”

have in fact commenced.”

It is the law of Mississippi that determines the point at which

the State initiated adversary proceedings against Minnick and,

consequently, the point at which Minnick’s Sixth Amendment

to was federal; Mississippi's right to counsel is embodied in Art. 3, Sec. 26

of its Constitution.

Below, Minnick raised issues under both the Sixth Amendment of the United

States Constitution and the Mississippi Constitution. See Appellant's Br. at

1, 12-14 and Appellant's Supplemental Br. at 6-9. Indeed, Mississippi explicit-

ly recognized this dual constitutional appeal. See Brief for Appellee to the

Mississippi Supreme Court at 2.

" Kirby notes that formal adversary proceedings may take the form of “for-

mal charge, preliminary hearing, indictment, information, or arraignment”

406 U.S. at 689. This recognizes that procedures for commencing adversary

proceedings vary according to state laws. United States ex rel. Dove v. Thieret.

693 F. Supp. 716, 720 (C.D. Ill. 1988) (“{s}ince the mechanisms of criminal

prosecution vary from state to state, the Supreme Court has not defined the

exact point at which a prosecution is initiated”). See also Jimpson v. Mississippi.

532 So. 2d 985, 988 (Miss. 1988) (Kirby and Brewer “suggest that the Court

look to the state procedure to determine when formal adversarial proceedings

a ot ea ad ma v. — oe . 523 So. 2d 68, 74 (Miss. 1988)

“may be at formal charge, preliminary hear-

ing, indictment, information, or arraignment, according to Kirby, implying

that the states must determine, within the context of their criminal justice

systems, how early that point wil] be”).

right to counsel actually attached. See Moore v. Illinois, 434 U.S.

220, 228 (1977) (examining Illinois law to determine purpose of

preliminary hearing and whether accused was entitled to

counsel); Coleman v. Alabama, 399 U.S. 1, 9 (1970) (examining

Alabama law to determine whether preliminary hearing was

critical stage and triggered Sixth Amendment right to counsel):

White v. Maryland, 373 U.S. 59, 60 (1963) (per curiam) (examin-

ing Maryland law to determine when Sixth Amendment attach-

ed); Hamilton v. Alabama, 368 U.S. 52, 53-55 (1961) (examin-

ing Alabama law to determine whether Sixth Amendment right

to counsel] attached at arraignment). See also Corley v. Mississipp.

536 So. 2d 1314, 1317 n.1 (Miss. 1988) (“[t}he correct reading of

federal law is that the Sixth Amendment right to counsel attaches

in a state criminal prosecution whenever under state law the

criminal process is deerned begun”).”

As noted in Minnick’s opening brief, Mississippi iaw provides

that “[a] prosecution may be commenced . . . by the issuance

» Lower federal courts have deferred to state court and statutory determina-

bon of when a state's formal adversarial process against the accused commences

and the Sixth Amendment right to counsel attaches. E.g., Meadows v.

Kuhlmann, 812 F.2d 72, 76-77 (2d Cir.) (New York law setting filing of com-

plaint and issuance of arrest warrant as beginning of criminal action governs

Sixth Amendment analysis), cert. denied, 482 US. 915 (1987); Felder v. McCot-

ter, 765 F.2d 1245, 1247-48 (Sth Cir. 1985) SS

an affidavit and criminal complaint in a Justice Peace court constitutes

the institution of formal judicial criminal proceedings” for Sixth Amendment

right to counsel purposes), cert. denied, 475 U.S. 111) (1986); United States

ex rel. Sanders o. Rowe, 460 F. Supp. 1128, 1139 (N.D. Ill. 1978) (“a federal

court will defer to a state statute or opinion fixing the time that adversary

judicial proceedings commence, if the time chosen is prior to that required

by Kirby”); United States ex rel. Burton o. Cuyler, 439 F. Supp. 1173, 1179

(ED Pa. 1977) (determination of when adversary judicial proceedings begins

depends “not only on the facts of the given case, but also upon the law of

the jurisdiction in which the facts arose”), affd without opinion, 582 F 2d

1278 (3d Cir. 1978).

Many federal constitutional rights of state criminal defendants require ap-

plication of state procedural law and ase designed to operate in “the context

of the cnminal processes maintained by the American States” Duncan v Lous

siana, 39] U.S. 145, 150 n.14 (1968). This Court has recognized that it “should

not lightly construe the Constitution so as to intrude upon the admunistration

of justice by the individual States.” Pattersor. v. New York, 432 U.S. 197, 201

(1977). Accord McMillan v. Pennsylvania, 477 US. 79, 85 (1986).

17

of a warrant, or by binding over or recognizing the offender to

compel his appearance to answer the offense, as well as by in-

dictment or affidavit.” Miss. Code Ann. § 99-1-7 (1972). The

Mississippi Supreme Court has repeatedly held that Mississippi

adversary proceedings commence upon the issuance of an arrest

warrant, as the State concedes here (Miss. Br. at 42-43).” In

response to this, Mississippi and the United States argue that an

arrest cannot mark the point of attachment in the federal system

(Miss. Br. at 48; U.S. Amicus Br. at 19, 20 n.11).” But Mississippi

and the United States fail to perceive that the authority on which

they rely applies only to federal, and not state, convictions.” In-

deed, the distinction between federal and state prosecutions was

explicitly recognized in one case, United States v. Pace, 833 F.2d

1307, 1312 n.3 (9th Cir. 1987), cert. denied, 486 U.S. 101] (1988),

cited by the United States (U.S. Amicus Br. at 20 n.1l). The Pace

court held:

* Mississippi acknowledges to this Court that “The Mississippi Supreme [sic]

held in Livingston v. State, 519 So. 2d 1218 (Miss. 1988), that the right to counsel

in the Sixth Amendment sense attaches at the time an arrest warrant is issued”

(Miss. Br. at 42-43). See alse Jimpson v. Mississippi, 532 So. 2d at 988; Nicholson

v. Mississippi, 523 So. 2d at 74.

* Arguing in the alternative, Mississippi and the United States also assert that

an arrest pursuant to a warrant issued in Mississippi does not indicate a com-

mitment by the State to prosecute (Miss. Br. at 47-48; U.S. Amicus Br. at 20-21).

This argument is flatly contradicted by Mississippi statute, Miss. Code Ann.

§ 99-1-7 (1972), and repeated holdings of the Mississippi Supreme Court. Eg.

Page v. Mississippi, 495 So. 2d 436, 440 (Miss. 1986).

© All but one of the cases cited by Mississipi and the United States involve

convictions based on federal law, and thus have no bearing on whether state

law determines the point at which an adversary criminal proceeding begins.

United States v. Gouveia, 467 U.S. 180 (1984), cited by Mississippi and the

United States, involved consolidated appeals of convictions oased on federa!

law. United States v. Pace, 833 F.2d 1307 (9th Cir. 1987), cited by the United

States, was also an appeal of a federal conviction as was United States v. Guido,

704 F.2d 675 (2d Cir. 1983). Judd v. Vose, 813 F.2d 494 (ist Cir. 1987) was

an appeal from a judgment denying a habeas corpus petition, and involved

a conviction under Massachusetts law. There, the court held consistent with

mence with the filing of an indictment or complaint (Mass. Ann. Laws ch.

263, § 4 (Law. Co-op. 1980 & Supp. 1990)), that appellant's Sixth Amend-

ment right to counsel did not attach upon arrest.

“[b]ecause prosecution under state law is commenced at dif-

ferent times depending upon the criminal procedure statutes

of the particular state, we limit our holding to federal

criminal prosecutions.” (citing Moore v. Illinois, 434 U.S.

220 (1977))

The United States additionally asserts that “[t here is nothing

unique about Mississippi's criminal procedure that would justify

holding that the Sixth Amendment right to counsel attaches at

ney samen arg oe ayer cota

Mississippi Supreme Court, however, in evaluating a

Amendment claim, determined that the point at which adver-

sary proceedings commence is designed to address unique

characteristics of Mississippi procedure:

“Application of [the federal] approach to our state consti-

tutional right to counsel would be wholly unworkable.

Indeed, amicus the Mississippi State Bar notes “that under

Mississippi's understanding of its criminal process, Minnick’s Sixth

Amendment right to counsel had attached by the time of

Denham’s interrogation.” See Brief Amicus Curiae of the Mississip-

pi State Bar dated September 13, 1990 at 5.

* Mississippi's final, make-weight argument is that the decision below only

addressed the right to counsel under the Mississippi Constitution (Miss. Br

at 42-47). It is clear, however, that the Mississippi Supreme Court's decision

addressed the federal right to counsel, or, at the very least, encompassed both

the state and federal nghts. The decision below consistently refers to the right

- to counsel at issue as the “Sixth Amendment right to counsel” (JA 76-80).

Mississippi's right to counsel, as we have previously observed, is not to be found

in any provision labeled “Sixth Amendment,” but in Article 3, Section 26 of

its Constitution. Nowhere does the court cite to the Mississippi right to counse!

provision. See JA 76-80. In any case, the Mississippi Supreme Court has made

clear that its determination of when adversary proceedings commence applies

to both the federal and state rights to counsel. E.g., Jimpson v Mississippi.

532 So. 2d at 988 (construing both federal and state right to counsel provi.

sions); Livingston vo. Mississippi, 519 So. 2d 1218, 1220 (Miss. 1988) (constru-

ing both federal and state right to counsel provisions).

CONCLUSION

The- judgment affirming Minnick’s conviction should be

reversed.

Dated: New York, New York

September 27, 1990

Respectfully submitted,

Fioyp Asrams*

ANTHONY PapUANO

Juprrn A. ARCHER

Kevin L. THurm

Cant, Gorpon & REINDEL

(a partnership including

professional corporations)

80 Pine Street

New York, New York 10005

(212) 701-3000

* Counsel of Record