# Reply Brief — Arizona v. Roberson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0708%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1988 - **Citation:** 486 U.S. 675 ## Text Supreme Court, U.S. FILED MAR 13 1988 | % 2OSEPH F. SPANIOL, aR, —SERK— No. 87-354 In The ; Supreme Court of the United States October Term, 1987 — —G THE STATE OF ARIZONA, Petitioner, RONALD WILLIAM ROBERSON, Respondent. — o— ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA —O— — ROBERT K. CORBIN BRUCE M. FERG The Attorney General Asst. Attorney General 315 State Government Bldg. WILLIAM J. SCHAFER, III 402 West Congress Chief Counsel Tucson, Arizona 85701-1367 Criminal Division Telephone: (602) 628-5501 Counsel ot Record COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 or call collect (402) 342-2831 a TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES 000. ARGUMENTS: I. RESPONDENT'S BRIEF, IN EMPHASIZING If. THE SUPPOSED INVOLUNTARINESS OF ROBERSON’S STATEMENT TO DETECTIVE COTA-ROBLES, BOTH OVERLOOKS THE FACTS (WHICH DEMONSTRATE ROBER- SON’S STATEMENT TO HAVE BEEN VOL- UNTARY), AND EFFECTIVELY CONCEDES THE NEED TO CHANGE THE PER SE ED- WARDS RULE, WHICH CURRENTLY MAKES VOLUNTARINESS IRRELEVANT. ..... TO THE EXTENT THAT THE SIXTH AMENDMENT IS A SOURCE FOR THE PER SE RULE OF EVWARDS V. ARIZONA, PROPER ANALYSIS REQUIRES THE CON- CLUSION THAT THE STATEMENTS OB- TAINED IN THIS CASE SHOULD HAVE a ee | ee il a 8 TABLE OF CASES AND AUTHORITIES Page CasEs Colorado v. Connelly, — U.S. —, 107 S.Ct. Edwards v. Arizona, 451 U.S. 477 (1981) .... passim Johnson v. Zerbst, 304 U.S. 458 (1938) .nnnnecnenenennen 4,8 Maine v. Moulton, 474 U.S. 159 (1985) 6 Michigan v. Jackson, 475 US. 625 (1986) ............... 5, 8 Miran2Za v. Arizona, 384 U.S. 436 (1966) 4, 5, 6,7 Moran v. Burbine, 475 U.S. 412 (1986) 6, 7 CoNSTITUTIONAL PROVISIONS Lt) eee 6,7 Amendment 6... sacrenstiieieenesiitammnasimm 6, 7 ARGUMENTS I. RESPONDENT’S BRIEF, IN EMPHASIZING THE SUPPOSED INVOLUNTARINESS OF ROBERSON’S STATEMENT TO DETECTIVE COTA-ROBLES, BOTH OVERLOOKS THE FACTS (WHICH DEMONSTRATE ROBER- SON’S STATEMENT TO HAVE BEEN VOL- UNTARY), AND EFFECTIVELY CONCEDES THE NEED TO CHANGE THE PER SE ED- WARDS RULE, WHICH CURRENTLY MAKES VOLUNTARINESS IRRELEVANT. The issue before this Court is whether the per se rule of Edwards v. Arizona, 451 U.S. 477 (1981), is properly applicable to a case where a suspect is ultimately ques- tioned about a crime wholly separate from the one in view when he was given his rights warnings and asked for a lawyer. Necessarily implied by that question is the thresh- old question whether the per se rule of Edwards should be applied in any case, a matter addressed by both parties. (See Petitioner’s Brief at °5-41; Respondent’s Brief at 18-20.) However, the major theme of Respondent’s Brief seems to be an effort to convince this Court that Rober- son’s April 19, 1985 statement to Detective Cota-Robles was not voluntarily given.! 1 Respondent's Brief flatly calls the statement involuntary at least six times. (See pages 10-11, 13, 15, 16, 20, 23.) It re- peatedly argues, despite this Court's recent decision in Colorado v. Connelly, — U.S. —, 107 S.Ct. 515 (1987), that the analytical focus should be on the suspect's state of mind. (See pages 12, 20, 23.) It refers almost a dozen times to the repeated question- ing of Roberson. (Pages 1, 10, 11, 13, 14, 16, 18, 19, 20.) It re- peatedly emphasizes the length of time Roberson was in custody without counsel before he was questioned by Detective Cota- Robles. (Pages 1-2, 10, 11, 14, 16, 19, 24.) It even characterizes the trial court’s action as being a “‘tinding that the confession was involuntary.” (Page 20.) 1 2 Respondent’s zeal to demonstrate involuntariness does a disservice to this Court in at least two ways. First, it tends to create a distorted view of the facts of this case. For example, one may read Respondent’s Brief in its en- tirety without ever finding mention of the fact that the trial court concluded that Roberson’s statement was volun- tary, and therefore was admissible as impeachment if Roberson testified at trial. (R.T. of April 3, 1986, at 43- 36; see also Petitioner’s Brief at 6.) That conclusion was not challenged in the Arizona Court of Appeals during the State’s appeal of the suppression order, which was strictly limited to the Edwards issue. (See the various briefs in- eluded with the record certified to this Court. ) Therefore, that Roberson’s statement was indeed voluntary simply is not open to question in this Court, and Respondent’s characterization of the trial court’s ruling is manifestly wrong. Another example: Respondent’s Brief at 1, 10, 13, and 20 asserts that all of the questioning after Roberson’s arrest, except Detective Cota-Robles’ interview on April 19, 1985, related to “Crime One’’, the April 16 burglary during which Roberson was apprehended. This tends to create an impression of badgering, that culminated in the statement given to Cota-Robles. However, there actually is nothing in the record from which it can be positively determined what the subject matter of each interview was, but there are strong indications that several of the inter- - views concerned information about others’ drug offenses and” robberies, which Roberson was offering to mitigate the heavy sentence he expected to receive on his burglary, and were not repeated interrogations about *‘Crime One’’, in which he had been caught ‘‘red-handed’’. (See R.T. of 3 Oct. 17, 1985, at 12, 18, 27-28; R.T. of April 3, 1986, at 29- 30.) Thus, Respondent’s Brief has gone to great lengths to create an aura of involuntariness when the facts indi- cate, and the trial court found, that Roberson’s statement to Detective Cota-Robles was wholly voluntary. This baseless emphasis on supposed involuntariness is particularly inappropriate in this case, because the es- sence of Respondent’s position is that the Edwards rule should be maintained in all its per se rigidity. Voluntari- ness-in-fact is completely irrelevant if the per se rule of Edwards remains viable; the point of that case was the establishment of an absolute rule against police-initiated renewal of interrogation, so that it simply doesn’t matter whether Robert Edwards or Ron Roberson or any otuer suspect is speaking voluntarily, if they don’t get in the first word. Thus, much of Respondent’s Brief appears to be a purely emotional appeal, of negligible assistance to the Court in resolving the issue before it. However, the inability of Respondent’s Brief to escape voluntariness analysis, even in the midst of advocacy of the Edwards per se rule, dramatically demonstrates an intuitive recog- nition of where the fundamental values of our constitu- tional criminal law system truly reside. Even the attor- ney with the greatest imaginable stake in the maintenance of the Edwards per se rule has implicitly acknowledged that it is resolution of the issue of voluntariness-in-fact which permits us to say whether someone was compelled to incriminate himself (contrary to the Fifth Amendment), or whether it is fundamentally fair (as required by the Due Process Clause of the Fourteenth Amendment) for the person’s statement to be admitted into evidence against 4 him. Thus, Respondent’s own advocacy supports revision of the per se rule of Edwards. his Court has previously been presented with a vari- ety of reasons why the Edwards rule is ripe for reevalua- tion. (Sce Petitioner’s Brief at 35-41.) Respondent’s Brief unwittingly but forcefully supports the proposition that the Edwards per se rule should be abandoned, by showing that the rule is not really responsive to the ques- tion it was supposed to answer—whether it is just in the constitutional sense to admit the defendant’s statements against him. That only a voluntariness inquiry can ac- complish. If the recognized social costs inflicted by utili- of an exclusionary rule are not substantially out- ~.-d by the benefits to be derived from the use of such ' -. implementation cannot be justified. Seven years & << rience with the Edwards rule shows that its bene- maceeptably costly, so it should now be abandoned or of the traditional rights waiver test of Johnson Ze vbst, 304 U.S. 458 (1938). II. TO THE EXTENT THAT THE SIXTH AMEND- MENT IS A SOURCE FOR THE PER SE RULE OF EDWARDS V. ARIZONA, PROPER ANAL- YSIS REQUIRES THE CONCLUSION THAT THE STATEMENTS OBTAINED IN THIS CASE SHOULD HAVE BEEN ADMITTED. When Respondent does deal with the nature and ef- fects of Edwards as a per se rule, rather than attempting to create an emotionally-charged vision of relentless police ‘‘badgering’’, he finds himself on the horns of a dilemma. The decision in Miranda v. Arizona, 384 U.S. 436 (1966), 4) spoke of two situations in which interrogation of a suspect should cease: when he invokes his right to silence and when he asks for a lawyer. This Court concluded in Mich- igan v. Mosley, 423 U.S. 96 (1975), that invoking the right to silence was not an absolute bar to further police ques- tioning, so long as the suspect’s right was ‘*serupulously observed’’. It would seem logical that invocation of the ‘‘right to counsel’’, which in the context of interrogation acts in precisely the same way as invocation of the right to silence, should have been treated in the same way-—a voluntary waiver would be acceptable at some point in time if the right was ‘‘scrupulously observed”’. Instead, this Court created the per se rule of Edwards, forbidding any police-initiated renewal of questioning. This differing treatment was apparently based on a per- ception that the ‘‘right to counsel’’ was of such value, even in interrogation situations, that it needed to be more jeal- ously protected. It is far from clear that, at least in the context of pre-arraignment interrogation, such a distinc- tion can properly be drawn. An account of an address given in 1983 by Yale Kamisar, one of the staunchest sup- porters of Miranda and its progeny, indicates that even he cannot rationalize the distinction. Preliminarily, Kamisar discussed Miranda’s prog- eny in general, focusing on the Court’s differentiation between invocation of the right to remain silent in Michigan v. Mosley, 423 U.S. 3017 [sie] (1975), and in- vocation of the right to counsel. He termed it ‘‘baf- fling’’ that the Court has given the police greater lee- way to resume interrogation when the right to remain silent has been asserted. Miranda’s language cuts the other way, he suggested; furthermore, logic would seem to call for greater protection of the right to re- 6 main silent since that is the basic right that Miranda meant to safeguard. The right to counsel is merely a derivative right in these circumstances. (34 Crim.L.Rep. at 2101.) However, if extra protection is to be accorded to an invocation of the ‘‘right to counsel’’, which on its face appears to be a mere adjunct and off- shoot of the Fifth Amendment right to silence, whence comes this additional value which requires special safe- guards? The only possible source would seem to be an- other amendment, presumably the Sixth, which in other contexts generates the right to the assistance of counsel. And therein lies the rub for Respondent. Sixth Amendment rights must also have Sixth Amendment lim- its, unless a logically indefensible attitude of ‘* Heads, I win; tails, vou lose’’ is adopted, applying to a crimmal defendant the benefits~but not the strictures of Sixth Amendment analysis. As pointed out in Petitioner’s Brief at 31-33, this Court’s decisions in Maine v. Moulton, 474 U.S. 159 (1985), and Moran v. Burbine, 475 U.S. 412 (1986), plainly indicate that the Sixth Amendment requires a knowing circumvention of an accused’s rights for there to be a violation, and will not permit an error committed in one case to be the basis for suppressing evidence in an unrelated case which contained no error. Such an analysis would certainly require admission of Roberson’s state- ment to Detective Cota-Robles, because Miranda was fol- lowed to the letter and the statement was voluntary, so there was no basis for exclusion in that case, taken by itself. Respondent wants the Edwards rule to remain rigid, when the only basis for distinguishing the multi-factor Mosley approach from the per se Edwards approach is that the Edwards-protected right apparently is at least partially derived from the Sixth Amendment rather than solely from the Fifth Amendment—and Sixth Amend- ment analysis entails admission of Roberson’s statement. Respondent’s Brief cannot resolve this tension; it merely mumbles for one paragraph (pages 17-18) and hurries on. This Court’s intellectual integrity will not permit it to skirt the issue in this way. If the Sixth Amendment is indeed one of the sources for Edwards, then Mate v. Moulton and Moran v. Burbine require the statement in this case to be found admissible. If the Sixth Amendment is not a source for Edwards, and the Miranda-generated ‘‘right to counsel’? is merely an adjunct to the Fifth Amendment right to silence, then logically the per se Ed- wards rule must be abrogated and a consistent Mosley- like approach be adopted whenever a Miranda right waiver is at issue. _—. CONCLUSION Respondent’s Brief discloses no substantial defects in the reasoning of Petitioner’s Brief. Therefore, this Court should award one of the alternate forms of relief requested by Petitioner—either restrict Edwards to one-investiga- tion cases or (preferably) abrogate altogether the per se rule of Edwards, substituting an approach like that utiJized in Michigan v. Mosley and Johnson v. Zerbst, 304 US. 458 (1938). Resp ctiully submitted, ROBERT K. CORBIN BRUCE M. FERG The Attorney General Asst. Attorney General 315 State Government Bldg. WILLIAM J. SCHAFER, III 402 West Congress Chief Counsel Tucson, Arizona 85701-1367 Criminal Division Telephone: (602) 628-5501 Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0708%3A06. Public record. Not legal advice.