Amicus Curiae Brief — Minnick v. Mississippi

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARi TO THE SUPREME COURT

OF MISSISSIPPI

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

Epwaarp 8.G. DENNIS, JR.

Assistant Attorney General

Wi.iaM C. Bryson

Deputy Solicitor General

Ropert A. Lona, In

Assistant to the Solicitor General

NINA GooDMAN

Attorney

Department of Justice

Washington, D.C. 20530

(208) 514-2217

BEST AVAILABLE COPY.

‘*

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7 *

3 od

QUESTION PRESENTED

Whether law enforcement officers may reinitiate

custodial interrogation after a suspect has invoked

his right to counsel and consulted with a lawyer.

(1)

TABLE OF CONTENTS

Page

Interest of the United States 1

ESE EE x 2

r 2 6

D ̃ TÄ .l!ké—3 8

I. The Edwards rule should not be extended to in-

terrogations conducted after a suspect has con-

r 8

II. The interrogation did not violate petitioner's

Sixth Amendment rights 17

EEE èP!XTT n 7ͤ˙ U — 22

TABLE OF AUTHORITIES

Cases:

Arizona v. Roberson, 486 U.S. 675 (1988) 9,11

Brewer v. Williams, 430 U.S. 387 (19777 18

Cannaday v. State, 455 So. 2d 713 (Miss. 1984) 21-22

CBS, Inc. v. FCC, 453 U.S. 367 (1981) 9

Coleman v. Alabama, 399 U.S. 1 (1970 19

Connecticut v. Barrett, 479 U.S. 523 (1987) 9,10

Doerner v. State, 500 N.E.2d 1178 (Ind. 1986) 15

Duckworth v. Eagan, 109 S. Ct. 2875 (1989). 12

Edwards v. Arizona, 451 U.S. 477 (1981) 1, 5, 6, 7, 8, 9,

10, 11, 12, 13, 15

Hoffa v. United States, 385 U.S. 293 (1966) 10

Illinois v. Perkins, 110 S. Ct. 2394 (1990) 10

Judd v. Vose, 813 F.2d 494 (Ist Cir. 1987) 20

J. I. Case Co. v. Borak, 377 U.S. 426 (1964 18

Kirby v. Illinois, 406 U.S. 682 (19727 18, 19, 21

Kora V. State, 102 Nev. 181, 718 P.2d 671 (1986) 15

Livingston v. State, 519 So. 2d 1218 (Miss. 1988) 22

Michigan v. Jackson, 475 U.S. 625 (19855 19-20

Michigan v. Mosley, 423 U.S. 96 (19755 6, 12

Michigan v. Tucker, 417 U.S. 433 (197 12

Miranda v. Arizona, 384 U.S. 436 (1966) 6, 8, 11, 12

Moore v. Illinois, 434 U.S. 220 (1977) 19

(IIT)

Cases—Continued : Page

Moran v. Burbine, 475 U.S. 412 (198) 14

New York v. Quarles, 467 U.S. 649 (1983) 12

Oregon v. Bradshaw, 462 U.S. 1039 (1983 9,10

Oregon v. Elstad, 470 U.S. 298 (19889) 12, 14

Page v. State, 495 So.2d 436 (198)))) 21, 22

Patterson v. Illinois, 487 U.S. 285 (198) 16

People v. Gacho, 122 III. 2d 221, 522 N.E.2d 1146,

cert. denied, 109 S. Ct. 264 (198) 15

People v. Trujillo, 773 P.2d 1086 (Colo. 1989) ........ 15

Pittman v. Black, 764 F.2d 545 (8th Cir.), cert.

denied, 474 U.S. 982 (19889) 15

Reiter v. Sonotone Corp., 442 U.S. 330 (1979)........ 9

Roper v. State, 258 Ga. 847, 375 S.E.2d 600, cert.

denied, 110 S. Ct. 290 (19899)7997er 15, 17

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) 14

Shea v. Louisiana, 420 U.S. 51 (19889) 9

Smith v. Illinois, 469 U.S. 91 (1984) ......................... 9,10

Solem v. Stumes, 465 U.S. 638 (1983 9

State v. Broom, 40 Ohio St. 3d 277, 533 N.E.2d 682

(1988), cert. denied, 109 S. Ct. 2089 (1989) ........ 15

State v. Cody, 323 N.W.2d 863 (S.D. 1982) 16

State v. Conover, 312 Md. 33, 537 A.2d 1167

?d . 15

State v. Grizzle, 293 8. C. 19, 358 S. E. 2d 388

(1987), cert. denied, 484 U.S. 1012 (1988) 16

State v. Morris, 719 S.W.2d 761 (Mo. 1986) 15

State v. Newsom, 414 N.W.2d 354 (lowa 1987) 15

State v. Perkins, 753 S.W.2d 567 (Mo. App. 1988) .. 17

Stete v. Pratt, 234 Neb. 596, 452 N.W.2d 54

19 ——7jꝙ5ͥ——— 15

State v. Preston, 555 A. 2d 360 (Vt. 198) 17

State v. Turner, 136 Wis. 2d 333, 401 N.W.2d 827

5 ——7＋5èkůůͤ—ͤͤ —V—: — 1 15

Terry v. LeFevre, 862 F.2d 409 (2d Cir. 1988) 15

United States v. Gouveia, 467 U.S. 180 (1984) 19, 20

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

88995 ———7—＋—＋—＋ð——ß—ß———.—6 20

United States v. Hall, 905 F.2d 959 (6th Cir.

V

Cases Continued: Page

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

Cir.), cert. denied, 454 U.S. 1127 (1981) — 5 16

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

1987), cert. denied, 486 U.S. 1011 (19883 20

United States v. Washington, 431 U.S. 181 (1977). 14

United States v. Weisz, 718 F.2d 413 (D.C. Cir.

1983), cert. denied, 465 U.S. 1027 (19843) 15

United States ex rel. Espinoza v. Fairman, 813

F.2d 117 (7th Cir.), cert. denied, 483 U.S. 1010

SI EC aE SR ee ee a a Oo 15, 17

Wyrick v. Fields, 459 U.S. 42 (1982277 ddan 9

Constitution, statutes, and rules:

U.S. Const. :

r 5, 10, 14, 15, 18

e 5, 7, 16, 17, 18, 19, 20, 21, 22

Fed. R. Crim. P.:

T laeemiieiniieaneaaienen 20

rr ee 20

RRS Pc 8 20

Mississippi Code Ann. 8 99-3-21 (19727 ma 20

Mississippi R. of Professional Conduct 4. 2 6

Miss. Uniform Crim. R. of Cir. Ct. Practice

(1979):

Zr res. 20, 21

ene P

e ae 1 20

Sup. Ct. R. 24.1 (a ee ee 7 18

Miscellaneous:

FBI, Legal Handbook for Special Agents 87-

YY | _ 2

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-6332

ROBERT S. MINNICK, PETITIONER

V.

STATE OF MISSISSIPPI

IN WRIT OF CERTIORARI TO THE SUPREME COURT

OF MISSISSIPPI

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

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

Court held that a suspect who invokes his right to

counsel during custodial interrogation “is not subject

to further interrogation by the authorities until

counsel has been made available to him,” unless the

suspect initiates further conversation. /d. at 484-

485. This case presents the question whether the rule

of Edwards should extend to cases in which a suspect

has invoked his right to counsel, the interrogation

has ceased, and the suspect has been afforded an op-

portunity to consult with counsel. The Court’s reso-

lution of this question will affect the conduct of in-

(1)

2

terrogations by federal law enforcement officers and

the admission ef voluntary statements by defendants

in federal criminal prosecutions.' In addition, the

Court’s disposition of this case will affect the admis-

sibility in federal prosecutions of statements obtained

by state and local law enforcement officers in circum-

stances similar to those in this case.

STATEMENT

1. On April 25, 1986, petitioner and another man,

James Dyess, escaped from the Clarke County, Mis-

sissippi jail. The day after their escape, petitioner

and Dyess came upon a mobile home, which they en-

tered in search of guns. Donald Thomas, the owner

of the mobile home, drove up in a pickup truck while

The Federal Bureau of Investigation permits its agents

to reinitiate interrogation after a suspect has invoked the

right to counsel and has had an opportunity to consult with

a lawyer. The FBI's Legal Handbook for Special Agents

states:

[If an accused invokes his her right to counsel during

the first effort at interview, Agents should not attempt a

second interview until the accused has had an opportunity

to consult with counsel or the accused “initiates” a second

interview. This rule does not prevent Agents from re-

contacting an accused for the limited purpose of deter-

mining if he she has had an opportunity to consult with

counsel. If the accused states he she has not had such

opportunity, the recontact must be terminated. If, how-

ever, the accused states he she has been afforded the op-

portunity but decided not to exercise this right, or he

has in fact contacted counsel, Agents can 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 Agents.

FBI, Legal Handbook for Special Agents § 7-4.1(5), at 84

(1990).

petitioner and Dyess were in the process of collecting

guns and ammunition. Thomas was accompanied by

Lamar Lafferty and Lafferty’s two-year-old son.

Dyess emerged from the trailer and shot Thomas in

the back with a shotgun and in the head with a pis-

tol. According to petitioner’s confession, Dyess then

ordered petitioner to shoot Lafferty with the pistol.

Petitioner claimed that Dyess pointed the shotgun at

him and forced him to shoot and kill Lafferty. J. A.

61-62, 70 73.

Thomas s younger sister Marty and her friend

Desiree Beech drove up to the trailer shortly after

the murders. Petitioner met the girls with a pistol

and ordered them to get out of the car if they wanted

to live. Marty Thomas recognized Lafferty’s body

lying on the ground outside the trailer. Petitioner

and Dyess marched the girls into the trailer and tied

their hands and feet with haystring. Dyess then

dragged the bodies of the murder victims to a nearby

gully, and the two men escaped in Thomas's pickup

truck. J.A. 63, 70-71.

2. Warrants for petitioner’s arrest on murder

charges were issued by a Mississippi state court on

May 6. 1986. J. A. 7. 26. On August 22, 1986. peti-

tioner was arrested in San Diego County, California.

The following day, agents of the Federal Bureau of

Investigation interrogated petitioner at the San

Diego County jail. The agents read petitioner the

Miranda warnings, and petitioner indicated that he

was willing to answer some questions, although he

declined to sign a waiver form. J.A. 13-14. 74. Dur-

ing the interview, petitioner admitted that he had

escaped with Dyess, that he and Dyess “got on the

road” and “came to the trailer,” and that Dyess be-

lieved they would find guns in the trailer that would

be their “ticket out of town.” J.A. 15. Petitioner

4

told the FBI agents that “[i]t was my life or theirs,”

and he said that Dyess had beaten him “a couple of

days or a week after ‘the mobile home. J.A. 14.

The FBI agents commented that it appeared peti-

tioner may have spared the lives uf the two girls, to

which petitioner responded that Dyess “wanted to

kill them tofo}.” J. A. 15. When petitioner hesitated

to tell the agents exactly what had happened at the

mobile home, they reminded him that he did not have

to answer questions without a lawyer. Petitioner

then told the agents to “[c]ome back Monday when

I have a lawyer,” and stated that he would make a

more complete statement with his lawyer present.

J.A. 16. The interrogation ceased immediately, and

petitioner was provided with an attorney, with whom

he consulted two or three times over the weekend

The attorney advised petitioner not to speak to any-

one else about the incident at the mobile home. J.A.

14-16, 44-47, 73-75.

On Monday, August 25, after petitioner had con-

sulted with his lawyer, Clarke County Deputy Sheriff

J.C. Denham questioned petitioner at the Sar Diegu

County jail. Denham first advised petitioner of his

Miranda rights, and petitioner again refused to sign

a waiver form. The deputy asked petitioner wheth

he wanted to talk about hat had happened. Peti-

tioner replied, It's been a long time since I’ve «>

you.” After conversing with Denham about relatives

and friends in Mississippi, petitioner agreed to tal’:

about his escape from the Clarke County jail. H

proceeded to confess his involvement in the murders

although he said that he had killed only one of th

two men. and then only because Dyess had forced

him to do so. Petitioner refused to sign the deput: ‘x

handwritten notes of the interview. J 73-75

5

3. Petitioner waived extradition and was returned

to Mississippi, where he was indicted in September

1986 on two counts of capital murder. In the trial

court, he moved to suppress his confession, claiming

that his statements were not voluntary and had been

elicited in violation of his rights un‘er the Fifth and

Sixth Amendments. The trial court denied petition-

er’s motion, although it refused to allow the prosecu-

tion to introduce the deputy’s notes of the interview.

Petitioner wes convicted of murdering Thomas and

Lafferty and was sentenced to death. J. A. 19-20, 67.

69, 73-75.

4. The Mississippi Supreme Court affirmed peti-

tioner’s conviction and sentence. „ A. 69-117. The

court upheld the admission of the statements peti-

tioner made to Deputy Sheriff Denham. First, the

court held that Denham’s interrogation did not vio-

late the principles of Edwards y. Arizona, 451 U.S.

477 (1981). Under Edirards, a suspect who requests

an attorney is not subject to further police-initiated

interrogation “until counsel has been made available

to him.” J. A. 75 (quoting Edwards, 451 U.S. at

405). After the suspect has had an opportunity to

consult with counsel, the court held, “the Edwards

bright-line rule as to initiation does not apply.” and

interrogation may resume. J. A. 75-76.

Che Mississippi Supreme Court also rejected peti-

tioner’s argument that Denham's inte: rogation vio-

lated petitioner's right to counsel under Mississippi

law.’ J. A. 76. The court concluded that petitioner

“had been ad-ised by an attorney prior to the con-

’ As discussed below, see pp. 21-22, infra. the Mississippi Su-

preme Court has held, as a matter of «tate law, that the right

to counsel under the Mississipp: Constitution attaches when a

suspect is arrested pursuant to a warrant.

versation with Denham, was aware that he did not

have to make any statements or answer any ques-

tions, and * * * made a conscious decision to relin-

3 his Sixth Amendment right to counsel.” J. A.

Justice Robertson dissented. J. A. 112-117. He ob-

served that Rule 4.2 of the Mississippi Rules of Pro-

fessional Conduct prohibits lawyers from communi-

cating directly with parties known to be represented

by counsel, and found “no basis for assuming that a

prosecuting attorney is exempt from [this rule].”

JA. 113. Accordingly, Justice Robertson concluded

that, once a suspect’s right to counsel under Missis-

sippi law has attached, he may not be questioned ex-

cept through counsel. J. A. 117.

SUMMARY OF ARGUMENT

1. The rule of Edwards should not be extended to

prohibit law enforcement officers from reinitiating

questioning when, after a suspect has invoked his

right to counsel, he has been afforded an opportunity

to consult with counsel and has done sv. The pro-

phylactie rules of Edwards and Miranda vy. Arizona,

384 U.S. 436 (1966), are designed to counteract the

psychological pressures of custodial interrogation. The

Court, however, has declined to “transform the

Miranda safeguards into wholly irrational obstacles

to legitimate police investigative activity.” Mich ian

v. Mosley, 423 U.S. 96, 102 (1975). Applying the

rule of Edwards in the circumstances of this case is

unjustified because the potentially coercive pressures

of custodial interrogation are dissipated when the in-

terrogation is broken off and the suspect is given an

opportunity to confer with counsel.

Petitioner’s invocation of the right to counsel dem-

onstrated that he was capable of choosing between

7

speech and silence even before he conferred with a

lawyer. And the fact that petitioner’s request for

counsel was honored gave him no reason to doubt that

a second invocation of his rights would be honored.

The risk of police badgering or overreaching that

concerned the court in Edwards is therefore not suffi-

ciently serious in this setting to justify imposing on

society the high cost of excluding probative, voluntary

confessions.

2. Petitioner did not present a Sixth Amendment

question in his petition for certiorari. The Court

should therefore decline to consider his Sixth Amend-

ment argument. In any event, petitioner’s Sixth

Amendment rights had not attached at the time of

his confession, since he had not been formally charged

or even arraigned on the arrest warrant. Petitioner's

contention that his Sixth Amendment right to counse!

attached when the arrest warrant was issued is not

supported by prior decisions of this Court or the

Mississippi Supreme Court. Federal law, not state

law, determines the moment at which federal con-

stitutional rights attach. Mississippi has determined

only that the right to counsel under a parallel provi-

sion of the Mississippi Constitution attaches when an

arrest warrant is issued, a point that is irrelevant to

analysis of the federal Sixth Amendment question.

a

ARGUMENT

. THE EPWARDS RULE SHOULD NOT BE EX.

TENDED TO INTERROGATIONS CONDUCTED

AFTER A SUSPECT HAS CONSULTED WITH A

LAWYER

In Miranda v. Avizona, 384 U.S. 436 (1966). this

Court concluded that custodial interrogation gener-

ates “pressures which work to undermine the individ-

ual’s will to resist and to compel him to speak where

he would not otherwise de so freely.” 384 U.S. at

167. To counteract those pressures, the Court devised

prophylactic rules intended to “assure that the in-

dividual's right to choose between silence and speech

remains unfettered throughout the interrogation

process.” Id. at 469.

Fifteen years later, in Edwards vy. Arizona, 451

U.S. 477 (1981), the Court adopted an additional!

prophylactic rule for cases in which the accused in-

vokes the right to counsel after Mirands warnings

have been give nm The Court held that, following such

a request, the suspect “is not subject to further inter-

rogation by the authorities until counsel has been

made available to him, unless the accused himself

initiates further communication, exchanges. or com-

versations with the police.” Jd. at 484-485.

The question in this case is whether the rule of

Edwards should be extended to prohibit law enforce-

ment officials from questioning a suspect whose prior

invocation of the right to counsel has been honored

by breaking off the interrovation and affording

the suspect an opportunity to consult with a lawver.

Neither Edwards nor subsequent decisions of this

Court applying the Edirards rule have resolved thet

question, hecause the susnects in those cases we

not permitted to consult with counsel before the police

reinitiated questioning.’ We submit that Edorards

shou'd net apply in this setting. Because the risk

that a suspect will capitulate to police coercion is

greatly reduced when questioning is broken off and

the suspect is afforded an opportunity to consult with

an attorney, any benefit that might be obtained by

applying the prophylactic rule of Edwords in this

context does not outweigh the costs associated with

the suppression of voluntary and highly probative

confessions.

"See Arizona v. Roberson, 486 U.S. 675, 678 (1988) ; Con-

necticut v. Barrett, 479 U.S. 523, 525-527 (1987); Shea v

Louisiana, 420 U.S. 51, 52 (1985) : Smith v. Illinois, 469 U.S.

91, 92-94 (1984): Oregon v. Bradshaw, 462 US. 1089, 1041.

1042 (1983) ; Wyriek v. Fields, 459 U.S. 42, 43-45 (1982). In

Solem v. Stumes, 465 U.S. 638, 642 (1984), the suspect spoke

te an attorney over the telephone after he was taken into cus-

reinitiated interrogation without permitting further consulta-

tion with the lawyer. Id. at 639-641. The Court assumed, for

of the Edwerds rule would seem to be broad enough to pro-

hibit the renewed questioning in this case, but other formula-

tions—such as the statement in Edwards itself that counsel

must be “made available” to the accused—would seem to per-

mit the questioning here. Consequently, the question whether

the rule of Edwards should be extended to a new class of cases

should be decided on its merits rather than on the basis of

language in prior opinions presenting different facts.

—

1. The Ed andes rule, like other aspects of

Miranda, “is not itself required by the Fifth Amend-

ment’s prohibition on coerced confessions, but is in-

stead justified only by reference to its prophylactic

purpose.” Connectiewt v. Barrett, 479 U.S. 523, 528

(1987). Because compulsion is an essential element

of a Fifth Amendment violation, see Hoffa v. United

States, 385 U.S. 293, 303-304 (1966): Mens v.

Perkins, 110 S. Ct. 2394, 2397-2398 (1990), the

prophylactic rule of Edwards must be based on the

risk of coercion. The Court has said that the justifi-

cation for the Edwerds rule is the risk that li] the

absence of such a bright-line prohibition, the authori-

ties through ‘badger[ing]’ or ‘overreaching’—explicit

~ subtle, deliberate or unintentional—might other-

se wear down the accused and persuade him to in-

riminate himself notwithstanding his earlier request

r counsel's assistance.” Smith . Ines, 469 US.

| GS (1984): see also Oregon v. Bradshaw, 462

LS. 1099, 1044 (1983) (plurality opinien).

Where the suspect invokes his right te counsel and

he authorities immediately break off the interroga-

tion and afford the suspect an opportunity to consult

with counsel, the risk of coercion is greatly reduced.

In that setting, in contrast to the Edwards setting in

which the suspect is never given a lawyer, it is far

less likely that law enforcement officers will wear

down the accused and induce him to confess. There

is therefore no need to extend the Edwerds per se

rule of exclusion to the setting of this case by presum-

ing conclusively that reinitiation of questioning, even

after the suspect has consulted a lawyer, will over-

come the will of the suspect and compel him to speak

when he would otherwise remain silent.

11

After consulting with a lawyer, the accused is in a

far better position to exert control over the course of

the questioning. He has had the benefit of his law-

yer’s advice, and he understands that he is not re-

quired to face interrogation alone. Because the sus-

pect’s initial request for counsel was honored, he has

no reason to doubt that police will honor a request to

discontinue the renewed questioning. Cf. Arizona v.

Roberson, 486 U.S. at 686 n.6 (doubt may be raised

by failure to provide suspect with requested counsel).

Moreover, the break in questioning itself dissipates

the psychological pressures of interrogation. It does

not violate the suspect’s “right to cut off question-

ing,” Miranda, 384 U.S. at 474, for the police to in-

quire, after the suspect has consulted with counsel,

whether he is now prepared to speak with them.“

In sum, the opportunity to consult with counsel

relieves the “pressures of custodial interrogation”

that gave rise to the per se rule of Edwards. The

Court therefore should not extend the Edwards rule

to a suspect who has invoked his right to counsel and

has had an opportunity to consult with a lawyer.”

In this case, petitioner actually consulted with a lawyer on

several occasions before Deputy Sheriff Denham questioned

him on August 25, 1986. The analysis would not be signifi-

cantly different if he had been offered counsel but had declined

the opportunity to consult with counsel before his reinterroga-

tion.

The rule applied by the Mississippi Supreme Court in this

case, like the rule of Edwards itself, is a bright-line rule that

fully “serves the purpose of providing ‘clear and unequivocal’

guidelines to the law enforcement profession.” Roberson, 486

U.S. at 682. There is nothing vague or ambiguous about the

requirement that law enforcement officers not reinitiate inter-

rogation of a suspect in custody who invokes the right to

12

The right to counsel during questioning and the

right to terminate questioning were the two principal

safeguards created by the Court in Miranda to pro-

tect the constitutional privilege against compelled

self-incrimination during custodial interrogation. Ac-

cordingly, once the State has provided the suspect

access to counsel, the suspect is in the same legal

position as any other suspect who has previously

chosen to invoke his right to silence and cut off ques-

tioning. As long as the police do not persist in “re-

peated efforts to wear down [the suspect’s] resistance

and make him change his mind,” Michigan v. Mosley,

423 U.S. 96, 105-106 (1975), they should be allowed

to approach the suspect to determine whether, after

speaking with counsel, he wishes to submit to police

questioning.

2. Because Miranda and Edwards establish pro-

phylactic rules, and thus may result in the exclusion

of some voluntary confessions, the Court has been

careful to weigh the benefits of those rules against

their costs each time it has determined whether to

apply them to a new class of cases. See, c. ., OH

v. Elstad, 470 U.S. 298, 306-307, 309 (1985)

(Miranda “sweeps more broadly than the Fifth

Amendment itself’); Michiqan v. Tucker, 417 U.S.

433, 450-451 (1974); see also New York v. Quarles,

467 U.S. 649, 657 (1984); Duckworth v. Fagan, 109

S. Ct. 2875, 2883 (1989) (O'Connor, J., concurring).

counsel “until counsel has been made available to him.”

Edwards, 451 U.S. at 484-485. Thus, there is no reason to

prefer the rule of Edwards to the rule applied by the Mis-

sissippi Supreme Court on the basis of clarity or ease of

application.

13

In the Edwards setting, the Court fcund the per se

rule justified because the Court considered it highly

unlikely that a person who had invoked his right to

counsel would validly waive that right when the

police again approached him without respecting his

request for counsel. The few cases in which a valid

waiver might be found in that setting were not worth

the litigation costs and the chance of an erroneous

finding of waiver. Moreover, the per se Edwards

rule had the benefit of discouraging a police practice

that the Court regarded as having a high risk of

abuse and little justification.

The benefits of extending the Edwards rule to

cases such as this one are much more modest. A per

se rule would, of course, still enable the courts to

avoid having to make case-by-case inquiries into the

validity of a suspect’s waiver of his rights and would

avoid certain litigation errors. But because a suspect

is less likely to be subject to coercion after he has

consulted with an attorney, there will be many more

valid waivers in a case like this one than in the

Edwards setting. Moreover, the benefit cf avoiding

litigation errors against the defendant will be coun-

terbalanced by the errors that the per se rule auto-

matically generates by disabling the State from prov-

ing that particular waivers were valid. Finally, be-

cause the police practice of reinitiating contact with

the suspect after he has consulted with counsel car-

ries less risk of abuse than the practice at issue in

Edwards, there is no justification for creating a rule

to discourage the practice altogether.

By contrast, the costs of extending the Edwards

tule to questioning initiated after a suspect has con-

sulted with counsel would be significant. This Court

has recognized that “ ‘the need for police questioning

14

os a tool for effective enforcement of criminal laws’

cannot be doubted. Admissions of guilt are more

than merely ‘desirable’ * * *; they are essential to

society’s compelling interest in finding, convicting,

und punishing those who violate the law.” Moran v.

Burbine, 475 U.S. 412, 426 (1986); see also Oregon

„ Elstad, 470 U.S. at 305; United States v. Washing-

ton, 431 U.S. 181, 186, 187 (1977); Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973). Confessions,

if obtained by fair methods that guarantee their re-

liability, result in the resolution of many cases that

could not otherwise be solved, ensure confidence in

the accuracy of criminal judgments, reduce the risk

of prosecuting or convicting innocent persons, and

»Neviate burdens on all segments of the criminal jus-

tice system. Any rule that excludes voluntary, reli-

able confessions from evidence therefore imposes sub-

stantial costs and carries a heavy burden of justifica-

tion.

Petitioner asserts (Pet. Br. 15 n.12) that “[o]ther

courts have generally agreed that Miranda and

Edwards forbid any state-initiated interrogation

without counsel present once the accused has re-

quested that counsel act as a medium between him

and the government.” That assertion contrasts

sharply with the argument in the petition for cer-

tiorari that “[m]any lower courts have differed on

the proper interpretation of Edwards,” Pet. 5, and

petitioner’s assertion that “the lower courts are in

hopeless disarray over this issue.” Pet. Reply Br. 5.

In fact, the great ma‘ority of the cases petitioner

cites in his brief on the merits do not stand for peti-

tioner’s proposition. Indeed, in many of the cases

cited by petitioner, the court held that there was no

violation of the Fifth Amendment, because the suspect

15

*

did not request counsel," or the police did not initiate

the discussion, or the custody was not continuous.“

Moreover, in most of the cited cases in which the

court found a Fifth Amendment violation, the au-

thorities did not break off the interrogation and give

the suspect an opportunity to consult with counsel.

Only three of the cases on which petitioner relies

applied the Edwards rule to the interrogation of a

defendant who had invoked the right to counsel and

consulted with a lawyer before the resumption of

police questioning. See Roper v. State, 258 Ga. 847,

375 S.E.2d 600, cert. denied, 110 S. Ct. 290 (1989);

State v. Newsom, 414 N.W.2d 354 (lowa 1987);

Koza v. State, 102 Nev. 181, 718 P.2d 671 (1986).

See Terry v. LeFevre, 862 F.2d 409 (2d Cir. 1988)

United States v. Weisz, 718 F.2d 413 (D.C. Cir. 1983), cert.

denied, 465 U.S. 1027 (1984) ; People v. Gacho, 122 Ill. 2d 221,

522 N.E.2d 1146, cert. denied, 109 S. Ct. 264 (1988) State v.

Pratt, 234 Neb. 596, 452 N.W.2d 54 (1990) State v. Broom,

40 Ohio St. 3d 277, 533 N.E.2d 682 (1988), cert. denied, 109

S. Ct. 2089 (1989).

See Pittman v. Black, 764 F.2d 545 (8th Cir.), cert. de-

nied, 474 U.S. 982 (1985) ; Doerner v. State, 500 N. E. 2d 1178

(Ind. 1986); State v. Conover, 312 Md. 33, 587 A.2d 1167

(1988); State v. Morris, 719 S.W.2d 761 (Mo. 1986) (en

banc); State v. Turner, 136 Wis. 2d 333, 401 N.W.2d 827

(1987).

*See People v. Trujillo, 773 P.2d 1086 (Colo. 1989) (en

banc).

In United States ex rel. Espinoza v. Fairman, 813 F.2d

117 (7th Cir.), cert. denied, 483 U.S. 1010 (1987), the court

held that the suspect had “invoked” his right to counsel, but

the suspect in that case did not in fact request counsel, and

the court's holding was based only on the suspect's “wnquali-

fied acceptance of counsel at his arraignment.” 813 F.2d at

123 & n.4,

16

Other courts presented with that factual situation

have reached the same result as the Mississippi Su-

preme Court in this case. See 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); State v. Grizzle, 293 S.C. 19, 358

S.E.2d 388 (1987), cert. denied, 484 U.S. 1012

(1988); State v. Cody, 323 N.W.2d 863 (S.D. 1982).

Thus, petitioner’s suggestion that a consensus has

developed in the lower courts is incorrect. Because

the balance of costs and benefits argues against a per

se rule in this setting, the Court should hold that

where a suspect has requested and been given an

opportunity co consult with counsel, the admissibility

of any statement he subsequently makes to law en-

forcement officers should be judged by the standards

that apply generally to statements made by suspects

in the course of custodial interrogation.”

The dissentin justice of the Mississippi Supreme Court

concluded that a Sate ethical rule prohibiting attorneys from

contacting represented parties should be applied to preclude

questioning of suspects represented by counsel. J. A. 112-117

(Robertson, J., dissenting). Of course, this Court does not

determine whether state criminal trials were conducted in

accordance with state rules of professional ethics. Such ethi-

cal rules are of constitutional significance, if ever, only after

the Sixth Amendment right to counsel has attached upon the

commencement of formal judicial proceedings against the sus-

pect. See Patterson v. Illinois, 487 U.S. 285, 302-308 (1988)

(Stevens, J., dissenting) (ethical violation “rise/s] to the

level of an impairment of the Sixth Amendment right to coun-

sel” when “adversary proceedings commence”). As demon-

strated below, petitioner's Sixth Amendment rights had not

attached at tre time of his confession. Thus, the ethical rule

cited by Jus’ we Robertson is irrelevant here

17

Il. THE INTERROGATION DID NOT VIOLATE PETI-

TIONER’S SIXTE AMENDMENT RIGHTS

Petitioner also argues (Br. 22-31) that the admis-

sion of his confession violated the Sixth Amendment.

1. As an initial matter, the petition for certiorari

did not present a Sixth Amendment issue, but in-

stead asked the Court to resolve a conflict in the

lower courts under the Fifth Amendment. Petitioner

framed the question presented as “[w]hether, once an

accused has invoked his Fifth Amendment right to

counsel, the police may reinitiate interrogation in the

absence of counsel as soon as the accused has com-

pleted one consultation with a lawyer?” Pet. Reply

Br. I. Petitioner asked the Court to grant certiorari

to resolve a conflict between the decision in this case

and Roper v. State, 258 Ga. 847, 375 S.E.2d 600,

cert. denied, 110 S. Ct. 290 (1989), and stated that

“the Georgia Supreme Court reversed the conviction

in Roper because a confession had been exacted in

violation of the Fifth Amendment.” Pei. 6. Peti-

tioner also alleged a conflict with the Seventh Cir-

cuit’s decision in United Steges ex rel. Espinoza v.

Fairman, 813 F.2d 117, ce. denied, 483 U.S. 1010

(1987), and noted that th Circuit “expressly

rejected Espinoza’s Sixth Amendment claim * * * and

rested the decision solely on the Fifth Amendment.”

Pet. 7 n.5. See also Pet. 9 (“Relying on the Fifth

Amendment, the court [in State v. Preston, 555 A.2d

360 (Vt. 1988)] ordered the suppression of [the

statement]”); Pet. 9 n. 11 (State ». Perkins, 753

S.W.2d 567 (Mo. App. 1988), “rest{[s] * * * solely

on the Fifth Amendment”). Indeed, immediately

after recapitulating the question before this

Court,” the petition stated that “[i}n the context of

18

the Sixth Amendment right to counsel, this question

would obviously not arise.” Pet. 11.

In short, the petition sought review of a Fifth

Amendment question, not the Sixth Amendment

question petitioner now seeks to place before the

Court in his brief on the merits. Accordingly, the

Court should follow its usual practice and decide only

the Fifth Amendment question presented in the peti-

tion. See Sup. Ct. R. 24.1(a) (“| T]he brief may not

raise additional questions or change the substance of

the questions already presented in [the petition for a

writ of certiorari].“); see also J.J. Case Co. v. Borak,

377 U.S. 426, 428-429 (1964).

2. If the Court decides that the Sixth Amendment

issue is properly presented for review, it should find

that there was no Sixth Amendment violation in this

case, because petitioner’s Sixth Amendment rights

had not attached at the time of his interrogation.

The right to counsel afforded by the Sixth Amend-

ment attaches “at or after the initiation of adversary

judicial criminal proceedings—whether by way of

formal charge, preliminary hearing, indictment, in-

formation, or arraignment.” Kirby v. Illinois, 406

U.S. 682, 689 (1972) (plurality opinion); see also

Brewer v. Williams, 430 U.S. 387, 398 (1977). The

initiation of formal judicial proceedings is the start-

ing point of our whole system of adversary criminal

justice,” and the point at which the accused is im-

mersed in the intricacies of substantive and proce-

dural criminal law.” Kirby, 406 U.S. at 689. The

Court’s approach is consistent with the “core pur-

pose” of the Sixth Amendment right to counsel,

which is to ensure the assistance of counsel at trial

and at critical pretrial proceedings in which “the ac-

cused [is] confronted, just as at trial, by the proce-

19

dural system, or by his expert adversary, or by

both.” United States v. Gouveia, 467 U.S. 180, 189

(1984).

Petitioner asserts that “this Court looks to the

criminal law of the state in question” to “determine

when formal criminal proceedings begin.” Pet. Br.

23-24 (citing Moore v. Illinois, 434 U.S. 220, 228

(1977) ). If petitioner is contending that state law

determines when Sixth Amendment rights attach, he

is plainly wrong. The determination whether “the

guiding hand of counsel * * * is essential” at a par-

ticular point in the prosecution is a matter of federal

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

Nothing in Moore v. Illinois, supra, suggests that

state law determines the point at which, under fed-

eral law, the Sixth Amendment right to counsel! at-

taches. Rather, the Court in Moore applied the

standards enunciated in Kirby to make that determi-

nation. In Moore, the Court concluded that “the gov-

ernment ha[d] committed itself to prosecute,“ and

the defendant was “faced with the prosecutorial

forces of organized society,” at the preliminary hear-

ing stage. 434 U.S. at 228.

Petitioner is equally off the mark if he is contend-

ing that, as a matter of federal law, his Sixth

Amendment rights attached at the moment the ar-

rest warrants were issued by a Mississippi court.

This Court has “never held that the [Sixth Amend-

ment] right to counsel attaches at the time of ar-

rest.” United States v. Gouveia, 467 U.S. at 190.

On the contrary, the Court has held that, where

formal charges have not been filed prior to arrest,

“the arraignment signals ‘the initiation of adversary

judicial proceedings.“ Michigan v. Jackson, 475

20

U.S. 625, 629 (1986) (citing Gouveia, 467 U.S. at

187-188) .™

There is nothing unique about Mississippi’s crim-

inal procedure that would justify holding that the

Sixth Amendment right to counsel attaches at the

time an arrest warrant is issued or at the time the

subject of the warrant is arrested. Because the issu-

ance of an arrest warrant in Mississippi, as else-

where, is an ex parte proceeding, Miss. Code Ann.

§ 99-3-21 (1972), there is no role for defense coun-

sel at that stage of the proceedings. Moreover, in

Mississippi, as in other jurisdictions, an application

for a warrant and an arrest on the warrant do not

11 Nomenclature in this area can be confusing. In many

States, the term “arraignment” refers to an arrestee’s first

appearance before a judical officer shortly after arrest, at

which the judicial officer typically sets the terms of the ar-

restee’s release, advises him of his rights, and may arrange

for the appointment of counsel if the arrestee is indigent. In

the federal system, and in Mississippi, that proceeding 1s

referred to as the initial appearance.” See Fed. R. Crim. P.

5; Rule 1.04, Miss. Uniform Crim. R. of Cir. Ct. Practice

(1979). The “arraignment,” in both the federal system and

in Mississippi, occurs later, after formal charges are filed;

it is the proceeding at which the defendant enters his plea to

Wie charges. See Fed. R. Crim. P. 10; Rule 3.01, Miss. Uni-

form Crim. R. of Cir. Ct. Practice. A preliminary hearing,

in both state and federal systems, is an adversary hearing at

which the State seeks to establish to the satisfaction of a

judicial officer that it has probable cause to hold the defendant

to answer to the charges. See Fed. R. Crim. P. 5.1; Rule 1.07,

Miss. Uniform Crim. R. of Cir. Ct. Practice (1979). In the

federal system, which generally parallels Mississippi practice,

it is settled that the Sixth Amendment right to counsel does

not attach at arrest. See United States v. Gouveia, supra;

United States v. Pace, 833 F.2d 1307, 1310-1312 (9th Cir.

1987), cert. denied, 486 U.S. 1011 (1988) ; Judd v. Vose, 813

F.2d 494, 496-497 (1st Cir. 1987) ; United States v. Guido, 704

F.2d 675, 676 (2d Cir. 1983). \

21

reflect a firm commitment on the part of the State

to institute criminal proceedings against the suspect.

It is only at the point at which the State files formal

charges, or where the intricacies of substantive and

procedural criminal law” come into play, Kirby, 406

U.S. at 689, that the Sixth Amendment right to coun-

sel attaches. Accordingly, petitioner’s Sixth Amend-

ment right to counsel had not attached at the time of

his interview by Deputy Sheriff Denham.”

Contrary to petitioner’s contention (Pet. Br. 22-

24), the Mississippi Supreme Court has not held that

federal Sixth Amendment rights attach when an ar-

rest warrant is issued, but instead has expressly

based its decisions on a parallel provision of the

Mississippi Constitution. In Page v. State, 495

So. 2d 436, 440 n.5 (1986), the Supreme Court of

Mississippi stated that it was very much aware of

the fact that a number of recent cases have held that

the right to counsel secured by the Sixth Amendment

to the Constitution of the United States is available

only after the initiation of judicial criminal proceed-

ings, i. e., indictment and arraignment.” In holding

that the right to counsel attaches upon arrest, the

court expressly “reject{ed] the federal approach”

and “rel[{ied] exclusively upon state law.” Ibid. See

also id. at 439 (“For purposes of our state constitu-

tional right to counsel, we define the advent of the

accusatory stage by reference to state law.”); Can-

12 Petitioner’s argument (Pet. Br. 22-23 n.16) appears to

assume that if the Sixth Amendment right to counsel attaches

at some time before indictment, it must attach when the

arrest warrant is issued. This is an oversimplification, be-

cause there are several intermediate stages in the Mississippi

process, including the initial appearance and the preliminary

hearing. See Rules 1.04 and 1.07, Miss. Uniform Crim. R. of

Cir. Ct. Practice (1979).

22

naday v. State, 455 So. 2d 713, 722 (Miss. 1984)

([Wie base our opinion herein on Mississippi law.

Mississippi jurisprudence compels the

result.“).“

The correctness of the Mississippi court’s resolu-

tion of Mississippi law regarding the right to coun-

sel under that State’s Constitution is, of course, not

at issue here. Under federal law, petitioner’s right

to counsel had not attached at the time he made the

statements at issue in this case. The Sixth Amend-

ment to the United States Constitution therefore has

no role to play in determining the admissibility of

those statements at petitioner’s trial.

CONCLUSION

The judgment of the Supreme Court of Mississippi

should be affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S. G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

NINA GOODMAN

Attorney

AUGUST 1990

18 The only other Mississippi precedent cited by petitioner,

Livingston v. State, 519 So. 2d 1218, 1221 (Miss. 1988), ex-

pressly relied upon the reasoning of Cannady and Page. See

519 So. 2d at 1220.

es GoveRnwenT Printing orrice; 1990 262203 20069