Respondents Brief — Michigan v. Harvey

BEST AVAILABLE COPY

i

COUNTER-STATEMENT OF THE QUESTION

Whether the State should be permitted to impeach a

defendant with a statement obtained in violation of the

Sixth Amendment.

TABLE OF CONTENTS

COUNTER-STATEMENT OF THE QUESTION ............ i

DEL 11

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

SUMMARY OF Andu nnd 3

ARGUMENT

Tue State SHoutp Nor Be Persitrtrep To

Impeacn A Derenpant Wiru A STATEMENT

OstatneD In Viocation Or Tue Stru AMEND-

cc

A. Tue Recorp In Tuts Case Doss Nor

C.

AFFIRMATIVELY DEMONSTRATE THAT

RESPONDENT'S STATEMENT OBTAINED IN

Viocation Or Tue StxtH AMENDMENT Was

1 ccc

Tut ImpeacHMENT Exception To Tue

FourtH AMENDMENT Exc iustonary Ru

SHoutp Have No Apptication To Tue

DeviBperRaTe Vio_ation Or RESPONDENT's

Sixtu AMENDMENT Ricut To CouNSEL ...

Tut ImpeacuMeNtT Exception To Tue

MAN DA Propuycactic Rue, Estaes-

LisHEeD In Harris v. New Yor«,

Have No Apptication To Tue Driise Rar

ViotaTion Or ReEsPONDENT'’s Stirn

AMENDMENT Ria To CouNSEL .........

Cs e . T.!T!T!T..!T.!..”™”*~—sTT—TC“

ill

TABLE OF AUTHORITIES

Case Page

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 US 388 (1971) .......... 10

Boykin v. Alabama, 395 US 238 (1969) ............... 21

Brooks v. Tennessee, 406 US 605 (1971777. 16

Carnley v. Cochran, 369 US 506 (1962))))) 21

Coleman v. Alabama, 399 US 1 (1970) ............... 17

Edwards v. Arizona, 451 US 477 (1981) .............. 6

Garrity v. New Jersey, 385 US 493 (1967) ............. 7

Geders v. United States, 425 US 80 (1976). 16

Hamilton v. Alabama, 368 US 52 (19611). 17

Harris v. New York, 401 US 222 (1970)............ 4,5, 15

Henry v. Dees, 658 F2d 406 (5th Cir 1981) ............ 7

Herring v. New York, 422 US 853 (1975)... 2... 2.2... 11

Johnson v. Zerbst, 304 US 458 (1937 ⸗ 22.2.6... 14

Kirby v. Illinois, 406 US 682 (1972 ))ÿr//ꝶP::p:p 10

Maine v. Moulton, 474 US 159 (198555 4. 9, 11, 18

Massiah v. United States, 377 US 201 (1964) 11, 17

McLeod v. Ohio, 381 US 356 (196599555 .. 11

Meadows v. Kuhlmann, 812 F2d 72 (2d Cir), cert denied,

EE 19

Michigan v. Jackson, 475 US 625 (1986 4, 18

Michigan v. Tucker, 417 US 433 (1974). 15

Mincey v. Arizona, 437 US 385 (1978) 16

Miranda v. Arizona, 384 US 436 (1966. 4, 12. 15

Moran v. Burbine, 475 US 412 (1986) .............. se

New Jersey v. Portash, 440 US 450 (19799 9, 16

North Carolina v. Butler, 441 US 369 (197999 21

Oregon v. Hass, 420 US 714 (197 )̊ )) 15

Patterson v. Illinois, 108 S Ct 2389 (198899. 13

People v. Gonyea, 421 Mich 462, 477, 365 NW 2d 136

F „„ „„ „„ „ 14. 19

People v. Sclafani, 132 Mich App 268 (1984) 7. 8

People v. Walker, 374 Mich 331; 132 NW2d 87 (1965) 7

People v. Walker Frazier, 24 Mich App 360, 180 NW2d 193

(1970); aff'd 385 Mich 596 (197177 7

Perry v. Leeke, 102 L Ed2d 624 (1989)................ 16

Powell v. Alabama, 287 US 45 (1932)............. 5, 16, 21

Simmons v. United States, 390 US 377 (1968) 19

iv

Table of Authorities Continued

Case Page

Solem v. Sterns, 465 US 638 (1984)... 0... 6.6 cee eee 18

Strickland v. Washington, 466 US 668 (1984).......... 20

Tague v. Louisiana, 444 US 469 (1980)0p 21

United States v. Ash, 413 US 300 (1973)))⸗: 11

United States v. Brown, 699 F2d 585 (2d Cir 1983) 19

United States v. Hammad, 846 F2D 854 (2d 1988) ..... 20

United States v. Havens, 446 US 620 (1980)........... 5

United States v. Henry, 447 US 264 (1980))0ꝶ 11

United States v. Marshall, 488 F2d 1169 (9th Cir 1973). 13

United States v. Morrison, 449 US 361 (198117 14. 18

United States v. Shuck, 44 Cr. L Rep. 2393 (DC NW Va) 14

United States v. Springer, 460 F2d 1344 (7th Cir 1972). 20

United States v. Thomas, 474 F2d 110 (10th Cir), cert.

e cua veeneneeeena 20

United States v. Wade, 388 US 218 (1967)............. 17

Walder v. United States, 347 US 62 (1954) ............ 7)

OTHER AUTHORITIES

ABA Special Committee on Criminal Justice in a Free

Society, Criminal Justice In Crisis,” (1988). ...... 8. 15

Comment, “The Impeachment Exception to the Sixth

—— Exclusionary Rule”, 87 Col. L. Rev. 176

9„% . 19

Comment, See of the Impeachment Exception to

the Sixth Amendment Exclusionary Rule: Seeking a

Resolution Based on the Substance of the Right to

CRUE, Ge el 19

W Police Obtained Evidence and the Constitution:

istinguishing Unconstitutionally Obtained Evi-

dence From Unconstitutionally Used Evidence”, 87

BEE, Een SE Se GUND occ cc eee 10

Pitofsky, “A Missed Opportunity to Curb Police Deception

of Criminal Defense Attorneys”, 25 American Cr. L.

D een 19

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendments V, VI

and XIV:

“No person . . shall be compelled in any criminal

case to be a witness against himself. . .”

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for

his defence.”

“.. . nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

COUNTER-STATEMENT OF THE CASE

Respondent Tyris Lemont Harvey was arraigned on

charges contained in the criminal complaint on July 2,

1986. The complaint charged two counts of first degree

criminal sexual conduct, which carries a penalty of any

number of years up to life in prison. A $20,000.00 cash

bond was set. Respondent, an indigent, was remanded to

the Wayne County Jail where he remained incarcerated

throughout the entire proceedings. An attorney was

appointed by the court to represent respondent, and on

July 10, 1986, respondent, with appointed counsel,

waived his statutory right to a preliminary examination.

He was bound over for trial. The personal service voucher

filed by respondent's appointed attorney shows a single

visit to the Wayne County Jail on July 14, 1986.

Although respondent’s bond was later reduced to

$20,000.00-10%, he remained in custody. Respondent

waived his right to a jury trial. His non-jury trial com-

menced September 15, 1986.

The complainant testified that she knew respondent for

three or four months before the alleged offense. (R35, 36)

2

She met him when a neighbor brought him to her home to

borrow the pipe she uses to smoke crack cocaine. (R36,

37) The complainant smoked crack cocaine one or two

times a week, but testified she did not use drugs on the

day in question. (R32) The complainant testified she was

sexually assaulted by respondent. (R26) She reported the

incident to the police approximately two days later. (R28,

29)

Respondent testified that he went to the complainant's

home about 9:00 p.m. (R97) They smoked cocaine and he

later asked if she would exchange sexual favors for more

cocaine. (R98, 99) He went with the complainant's sister

to get more cocaine. (R99) The complainant did not

provide the sexual favors, they argued, and fought. (R99,

100) Respondent denied any sexual act. (R108)

During cross-examination of the respondent, the pros-

ecutor utilized a statement respondent made to the police

on July 2, 1986 in an effort to impeach him. (R110, 112)

Then the prosecutor utilized a statement apparently

made by respondent to a police officer six days before

trial. (R116-121) The trial record does not indicate that

respondent signed a constitutional rights waiver form at

the time of the second statement nor does it indicate that

respondent initialed any rights on such a form. The trial

prosecutor conceded a Miranda violation, admitting that

the statement was Miranda deficient. (R116)

No testimony was offered concerning any of the circum-

stances surrounding the taking of the statement. Instead,

the trial record only contains the following remarks by the

trial prosecutor:

MS. HICKEY: Why? Your honor, I will stipulate it

was not subject to proper Miranda and, therefore, I

could not have used it in my case in chief.

3

I talked to the woman that took the statement and

my indication is that Defendant indicated that he

wanted to give a statement but he didn’t know if he

should talk to his lawyer. She told him he didn’t need

to talk to his lawyer, his lawyer was going to get a

copy of the statement anyway.

Thats why I did not choose to use it in my case in

chief. There is no indication that it was involuntary

and under Harris v. New York, I may, therefore, use

it to impeach, even if improper Miranda is existing in

this case. (R116, 117)

The only impeachment concerned the dollar amount of

cocaine ($30, $50 or $80) (R116-119), whether respondent

remembered the name of another man who had also gone

to buy cocaine, and respondent’s alleged omission in the

September 9, 1986 statement that the other man had

purchased his own cocaine. (R119-121)

SUMMARY OF ARGUMENT

The record in this case does not affirmatively demon-

strate that respondent's statement obtained in violation of

the Sixth Amendment was voluntary. The issue of volun-

tariness was never adequately addressed or litigated

below. It is unclear whether or not respondent's desire to

invoke his Michigan statutory right to a polygraph exam-

ination was confused with any intention to speak with

police officers conducting an interroyation six days before

his trial.

The impeachment exception to the Fourth Amendment

exclusionary rule should have no application to a deliber-

ate violation of respondent's Sixth Amendment right to

counsel. The Fourth Amendment and Sixth Amendment

have distinct underlying purposes. Any analogy between

the Fourth and Sixth Amendments is imperfect.

4

Sixth Amendment rights attach after formal charge

and a violation of those rights impacts upon the integrity

of the trial process. The “prosecutor and police have an

affirmative obligation not to act in a manner that circum-

vents and, thereby, dilutes the protection afforded by the

right to counsel.” Maine v. Moulton, 474 US 159, 171

(1985). Where police interrogate a criminal defendant six

days before his trial, the presence of counsel is necessary

not only to advise the defendant on whether to make a

statement, but also to mitigate dangers of untrust-

worthiness, to guarantee defendant comprehends ques-

tions propounded and ensure that his statement is fully

accurate and “rightly reported by the prosecution at

trial.” Miranda v. Arizona, 384 US 436, 469-470 (1966).

Nor should the impeachment exception to the Miranda

prophylactic rule, established in Harris v. New York, 401

US 222 (1970), have application to a deliberate violation of

respondent's Sixth Amendment right to counsel. Where

core values of either the Fifth Amendment or Sixth

Amendment are implicated, then a balancing of those

constitutional interests which must be protected and the

truth seeking function of trial is impermissible. Peti-

tioners restrictive view of the role of counsel is contra-

dicted by more than five decades of Sixth Amendment

jurisprudence. Where the state deliberately violates the

right to counsel, the need to preserve the right itself

should render balancing impermissible.

Respondent commends a reading of Michigan v. Jack-

son, 475 US 625 (1986) as an application of the Sixth

Amendment guarantee rather than as formulation of a

prophylactic rule analogous to Miranda warnings.

Assuming arguendo, however, that Jackson only estab-

lishes a prophylactic rule (a violation of which petitioner

admits) the record in this case refiects a constitutional

5

deprivation which extends to the integrity of the trial

process itself. The state should not be entitled to benefit in

any fashion from wrongdoing which may impinge upon

the integrity and reliability of the trial process. Any rul-

tee of counsel so “essential to any fair trial of a case

against a prisoner.” Powell v. Alabama, 287 US 45, 70

(1932).

ARGUMENT

THE STATE SHOULD NOT BE PERMITTED TO [IMPEACH A

DEFENDANT WITH A STATEMENT OBTAINED IN

VIOLATION OF THE SIXTH AMENDMENT.

A. THE RECORD IN THIS CASE DOES NOT AFFIR-

MATIVELY DEMONSTRATE THAT RESPONDENT'S

STATEMENT OBTAINED IN VIOLATION OF THE

SIXTH AMENDMENT WAS VOLUNTARY.

Respondent, a nineteen year old indigent with no prior

record! was confined in a county jail throughout the entire

criminal case. A mere six (6) days before his trial he was

interrogated by police officers.2 The record does not

reveal when respondent's appointed counsel learned of the

pretrial interrogation or was shown the purported state-

ment. Indeed, the police officers’ deliberate and mislead-

ing comment to respondent that he didn’t need his

attorney may have resulted in respondent's failure to

inform counsel about the interrogation because the officer

also told Mr. Harvey that his lawyer was going to get a

copy of the statement. (R116, 117).

R. Sentence Hearing 3.

= Unlike Harris v. New York, 401 US 222 (1970), the statement

itself was not placed in the record.

6

The trial prosecutor, during cross-examination of

respondent, attempted to utilize the statement, as well as

an alleged omission during the interrogation, for

impeachment purposes. No testimonial record was made

MS. HICKEY: Why? Your honor, I will stipulate it

— — — and, therefore, I

could not have it in my case in chief.

To be sure, the prosecutor's remarks concede no ade-

quate Miranda warnings were given.* Those same

remarks also demonstrate that the statement was taken

in contravention of respondent's Sixth Amendment right

to counsel. Indeed, petitioner sought and gained access

to this Court conceding a Sixth Amendment violation.

* This concession is in conflict with the opinion of the Michigan

Court of Appeals. Brief for Petitioner 10 through 12.

lt is also evident that there was a violation of the prophylactic rule

articulated in Edwards v. Arizona, 451 US 477 (1981).

See Statement of Question Presented Petition p. I. Now, in an

extended discussion of the Sixth Amendment, petitioner backs away

from this concession and extends an implied invitation to find no Sixth

Amendment deprivation here or to reverse more than five decades of

Sixth Amendment jurisprudence.

7

The trial prosecutor also reiterated an alleged state-

ment by the police officer that “Defendant indicated he

wanted to give a statement”. This remark, along with

respondent's affirmative response to a prosecutor's ques-

tion incorporating respondent's belief in his own inno-

cence, presumably, according to petitioner, demonstrates

voluntariness. Respondent suggests that, given an essen-

tially silent trial record, this is likely an unfair and inaccu-

rate conclusion.

As petitioner observes, respondent invoked his stat-

utory right under Michigan law to a polygraph examina-

tion, and that test may have been given on the same day as

the offending interrogation.® On this record, respondent's

expressed desire to take a polygraph examination may be

inextricably intertwined with the custodial interrogation

which followed or preceded it. It is therefore unclear

whether respondent's desire to take a polygraph examina-

tion was confused with or transformed into a desire to

give a statement. If respondent believed that he had to

speak to the police in order to obtain his statutory right to

a polygraph examination, then respondent was subjected

to an intolerable choice which injects an element of coer-

cion. Garrity v. New Jersey, 385 US 493 (1967). And the

prosecutor's question, as well as the respondent's answer,

conceivably were adroit attempts to avoid reference to the

polygraph examination itself which, under Michigan law,

may have injected reversible error.’

In Michigan, this procedure may implicate traditional concerns

for voluntariness and trigger the necessity for “Walker hearings.”

(People v. Walker, 374 Mich 331; 132 NW2d 87 (1965), holding that the

voluntariness of a confession must be determined on a separate

record outside of the presence of the jury.) See, ¢.g.. People v.

Selafani, 132 Mich App 268 (1984); 347 NW2d 30 (1984). See also

Henry v. Dees, 658 F2d 406 (Sth Cir 1981).

See, eg. People v. Walker Frazier. 24 Mich App 360; 180 NW2d

193 (1970); aff'd 385 Mich 596 (1971).

8

Respondent's counsel made no effort to inquire about or

challenge the legality of the statement. The Michigan

Court of Appeals concluded that this critical failure by

appointed counsel may have been because “he apparently

believed that the second statement was identical to

Defendant's trial testimony.”* In any event, the record

below is almost completely barren of facts concerning the

full extent of police conduct and demeanor involved in the

taking of this statement. Nor does the record speak to

respondent's mental condition, level of literacy, state of

mind, level of intelligence or physical condition.“

In People v. Sclafani, supra, note 6, the Michigan Court of

Appeals found that defense counsel's limited familiarity with police

polygraph examinations, which in that case led to defendant's con-

fession during a pre-polygraph “interview”, amounted to ineffective

assistance of counsel compelling a reversal. The ABA Special Com-

mittee on Criminal Justice in a Free Society, in its 1988 report

“Criminal Justice in Crisis,” discussed the Sixth Amendment right to

— — si’ In the ease of Une tndigunt defend.

ant, . is too

aggressive but that it is often inadequate. Id at 35.

The personal services voucher submitted by counsel and contained

in the trial record shows a single visit with respondent at the county

jail on July 14, 1986. A preliminary examination scheduled for July

10, 1986 was also waived. Moreover, the statement itself was

exculpatory in nature and one might reasonably suggest that per-

ceived inconsistencies involved peripheral or unimportant details

* Both the complainant in the case and the respondent had sub-

stance abuse problems and admitted use of cocaine.

9

Voluntariness and an absence of impermissible coercion

are an absolutely essential predicate to resolution of the

issue as framed by petitioner. And this Court may not

wish to “engage in this type of abstract adjudicating of

constitutional rights in a factual vacuum.” New Jersey v.

Portash, 440 US 450 at 464 (Blackmun, J., dissenting).

Regardless, petitioner's effort to extend application of the

impeachment exception to the Fourth Amendment exclu-

sionary rule or the prophylactic requirements of Miranda

to a substantive violation of the Sixth Amendment right

to counsel should fail.

B. THE IMPEACHMENT EXCEPTION TO THE

FOURTH AMENDMENT EXCLUSIONARY RULE

SHOULD HAVE NO APPLICATION TO THE DELIB-

ERATE VIOLATION OF RESPONDENT'S SIXTH

AMENDMENT RIGHT TO COUNSEL.

Petitioner argues that notwithstanding deliberate vio-

lation of the Sixth Amendment right to counsel, the state

should be free to make affirmative use of a wrongfully

obtained statement to cross-examine a defendant. '”

There is no question that this Court has long held that

physical evidence illegally seized in contravention of

Fourth Amendment rights may be used in such a manner.

Walder v. United States, 347 US 62 (1954); United States

v. Havens, 446 US 620, 626 (1980). But the harms involved

in these distinct constitutional rights are as different as

the rights they are intended to secure and the important

purposes underlying them. In the normal course, an

illegal search is likely in the investigative stage rather

' The fact that contact with respondent may have been initiated

because of respondent's request for a polygraph examination is irrele-

vant to the Sixth Amendment violation. See Maine v. Moulton, 474

US 159 (1985)

10

than after formal accusation. The harm is essentially com-

plete at the time of the wrongdoing. The aggrieved party

has other remedies. See, g., Bivens v. Sir Unknown

Named Agents of the Federal Bureau of Narcotics, 403

US 388 (1971). A Sixth Amendment violation, on the

cedural ‘and involve the integrity of a criminal prosecu-

tion. See Loewy, “Police Obtained Evidence and the

Constitution: Distinguishing Unconstitutionally

Obtained Evidence From Unconstitutionally Used Evi-

dence”, 87 Mich. L. Rev. 907 (1989)

Formal charge by the state marks the commencement

— 689-90 (1972) (plurality — em

U

Critical Sixth Amendment rights are thus said to

“attach” to the accused and limit subsequent interaction

11

between the state and the accused. This Court has there-

fore emphasized that “the prosecutor and police have an

affirmative obligation not to act in a manner that circum-

vents and, thereby, dilutes the protection afforded by the

right to counsel.” Maine v. Moulton, 474 US 159 (1985).

The state is not permitted to deliberately elicit (or log-

ically attempt to elicit) incriminating statements from a

defendant represented by counsel after indictment or

formal charge. Massiah v. United States, 377 US 201

(1964); United States v. Henry, 447 US 264 (1980). The

right to counsel is one of several Sixth Amendment guar-

antees which are fundamental rights extended to the

accused through the Fourteenth Amendment in a state

prosecution. Herring v. New York, 422 US 858 (1975).

Massiah binds the state through the Fourteenth Amend-

ment. McLeod v. Ohio, 381 US 356 (1965).

When unnamed police officers interrogated respondent

in secret more than two months after appointment of

counsel and six days before his trial, they were not

engaged in an investigative inquiry to solve a crime.

Instead they served as agents of the prosecutor and were

“adversaries” attempting to obtain admissions and pre-

pare for trial. Thus, they deliberately attempted to sub-

stitute non-public interrogation for public trial with all of

its procedural safeguards. The presence of counsel is

absolutely necessary on such an occasion to “minimize the

imbalance in the adversary system.” L’nited States v.

Ash, 413 US 300, 309 (1973). An attorney's presence is

necessary in this critical situation “where the accused is

confronted by his expert adversary” under circumstances

where “the results might well settle the accused fate.”

Id. at 310.

Also, deliberate intrusion of respondent's right to coun-

sel here causes a continuing harm which extends to the

trial process itself. Under the facts of this case, questions

of fairness, reliability, and trustworthiness are impli-

cated. The attempt by the trial prosecutor to impeach

respondent by an alleged omission at the time of the

interrogation is illustrative:

Jou didn’t tell the investigator last week that he

8 had bought his own cocaine, did you?

A. 222K a

You did’

Yes.

So, if it's not in the statement, they just left it

out?

A. Yes.

R 121, 122

Here, respondent testified that he made a particular

statement to the interrogating officers, while the pros-

ecutor insinuates to the contrary. This, according to the

petitioner, is a desired truth-testing device.

Incongruously, however, the prosecutor in this case failed

to complete the impeachment process since the officers

who conducted the interrogation were never called as

witnesses. But the point here is not that respondent's

answer stands uncontradicted in the trial record; rather

the point is that presence of counsel was necessary at the

interrogation, not only to advise respondent on whether

to make a statement, but also to “serve several

subsidiary functions as well”. These include mitigating

“the dangers of unt rust worthiness” and helping “to guar-

antee that the accused gives a fully accurate statement to

the police and that the statement is nghtly reported by

the prosecution at trial.” Miranda v. Arizona, supra at

S ＋

13

469-470. Thus, the role of counsel at post-indictment

interrogation need not be relatively limited, unimportant,

or unidimensional. !!

Indeed, the subtleties of post-indictment, secret inter-

rogation, by a law-enforcement adversary preparing for

trial may be far greater than the subtleties involved in

jury voir dire or other trial events. During post-indict-

ment questioning, it is of paramount importance that

questions and answers be unambiguous, comprehended,

fairly stated, and responsive, as well as accurate and

“rightly reported” to the prosecutor. Further, reality and

experience teach us that law enforcement officers and

civilians, including those accused of crimes, often do not

speak the same language. See, e.g., United States v. Mar-

shall, 488 F2d 1169, 1171 fn. 1 (9th Cir 1973) (agents often

speak an almost “impenetrable jargon”. ) It is the presence

of counsel at post-indictment interrogation which may

prevent distortion of the truth-seeking function.

Nor is it appropriate to suggest that there need be no

concern for the concept of deterrence. In a close case,

such as this one, a police officer may be sorely tempted to

engage in pretrial interrogation in an effort to prepare for

trial, buttress the states case, learn defense strategy, or

even dissuade a defendant from exercising his right to

‘Cf Patterson v. Illinois, 108 S Ct 2389 (1988) fn 6,13

When the Solicitor General urges that Sixth Amendment viola-

tions should not handicap the “advocates” in their ability to expose

truth, the government realistically speaks of the police/agent “advo-

cate” who takes the place of the professional prosecutor. Brief for the

United States at 18. Indeed, many federal law enforcement agents

are college educated or trained as lawyers. When a police officer or

federal agent departs from the role of an investigator and becomes an

advocate preparing for trial, serious concerns may arise concerning

trustworthiness and accuracy.

14

testify. An officer could thereby consciously or uncon-

sciously hinder accurate fact finding. The deliberate

intrusion into the attorney-client relationship may under-

mine the relationship itself and detract from counsel's

ability to fairly and fully present a defense. 4

Sixth Amendment violations are thus imcomparable to

Fourth Amendment harms. The precious Sixth Amend-

ment right to counsel has long been cherished by this

Court because it “stands as a constant admonition that if

the constitutional safeguards it provides be lost, justice

will not ‘still be done. Johnson v. Zerbst, 304 US 458, 462

(1937). As the late Chief Justice G. Mennen Williams of

the Michigan Supreme Court wrote in People v. Gonyea

421 Mich 462, 477, 365 N W 2d 136 (1984):

In light of the particular importance of the right to

counsel, we are hesitant to tolerate any transgres-

sion. To permit law enforcement officers to obtain

statements from the defendant in violation of his

right to counsel, and to use those statements to

attack the defendant and his case, would be to permit

an attack on the very foundation of our criminal jus-

tice system. When the police are permitted to com-

mit such a violation, the effect is to gnaw at the very

_ pillars of democracy.

1, United States v. Shuck, 44 Cr. L Rep. 2393 (DC N WVa)

where the district judge found that government attorneys engaged in

efforts to impair the relationship bet ween defendants and their law-

yers. See also United States v. Morrison, 449 US 361 (1981), where

agents denigrated defense counsel, attempted to convince the

defendant to relinquish her trial rigits, strike a bargain with the

government and “cooperate”.

-

15

C. THE IMPEACHMENT EXCEPTION TO THE

MIRANDA PROPHYLACTIC RULE, ESTABLISHED

IN HARRIS V. NEW YORK, SHOULD HAVE NO

APPLICATION TO THE DELIBERATE. VIOLATION

OF RESPONDENT'S SIXTH AMENDMENT RIGHT

TO COUNSEL.

In Miranda v. Arizona, this Court utilized a prospec-

tive warning to improve the criminal justice system. By

establishing and requiring a system of procedural safe-

guards, the Court sought to ameliorate the inherently

coercive nature of custodial interrogation. Both the police

and prosecution were placed on notice that adherence to

these procedural rules was a necessary predicate for the

admissibility of statements obtained from criminal sus-

pects.'4 These prophylactic warnings, however, are “not

themselves rights protected by the Constitution

Michigan v. Tucker, 417 US 433, 444 (1974). Con-

sequently, where police fail to adhere to the rules of

Miranda, “sufficient deterrence flows when the evidence

in question is made unavailable to the prosecution in its

case in chief.” Harris v. New York, 401 US 222, 225 (1970).

Where there is a Miranda defective statement by the

defendant, it may be used for impeachment purposes so

long as it is trustworthy, voluntary, and uncoerced. This is

so because of the importance of the criminal trial’s func-

tion as a search for the truth and the need not to trans-

form the prophylactic Miranda warnings into a license for

perjury. Harris, 401 US at 226. See also Oregon v. Hass,

420 US 714 (1975).

'4 Petitioner also offers an elaborate footnote (footnote 6, pages 69

through 72) critical of Miranda and Edwards. But see “Criminal

Justice In Crisis”, American Bar Association, Special Committee on

Criminal Justice in a Free Society at 27-34, which concludes that

Miranda does not have a significant impact on law enforcement’s

ability to solve crime or achieve successful prosecutions.

16

Where a defendant's statement lacks voluntariness or

involves a direct violation of the Fifth Amendment itself,

then that statement may not be used for any purpose

including impeachment. Mincey v. Arizona, 437 US 385

(1978); New Jersey v. Portash, 440 US 450 (1979). When

the amendment itself is implicated, this Court found that

balancing of those interests of deterrence and the truth

seeking function was simply “impermissible”. Portash,

440 US at 459.

The impermissibility of balancing, however, is not lim-

ited to violations of the Fifth Amendment alone. In a

Sixth Amendment context, the Court also refuses to

engage in balancing. Thus, the Court in Brooks v. Ten-

nessee, 406 US 605 (1971), invalidated a “truth in testi-

mony law” which required a criminal defendant to testify

before any other defense witness. 15 The purpoce of that

statutory requirement was entirely consistent with the

aim of promoting the truth seeking function of trial. But

the law was invalid not only because it imposed an inap-

propriate restriction on a defendant’s Fifth Amendment

decision to testify or remain silent, but also because it

denied defendant “the guiding hand of counsel at every

step in the proceedings against him”. Brooks, 406 US at

612 (quoting Powell v. Alabama, 287 US 45, 69 (1932)).

The Court has reached analogous results even when

there were significantly less serious restrictions, despite

assertions that the truth seeking function of trial might

suffer. In Geders v. United States, 425 US 80 (1976), the

Court determined that the trial court reversibly erred in

forbidding consultation between defendant and counsel in

an overnight recess during defendant's trial testimony. '®

See Brief for Respondent State of Tennessee No. 71-5313 at 6.

A similar restriction in a mere 15-minute recess during a defend-

ant’s testimony falls on the other side of the constitutional line. Perry

v. Leeke, 102 L Ed2d 624 (1989).

17

It is evident that where core values of Fifth or Sixth

Amendment rights are involved, the interests of preserv-

ing those values must be served aside from contentions

that the truth seeking function may be impaired.

Petitioner's restrictive view of the role of counsel is

contradicted by this Court’s long standing body of Sixth

Amendment jurisprudence. On this record there is no

support for any implied invitation by petitioner to

redefine the parameters of the Sixth Amendment.

The right to counsel concerns fairness not just at the

trial itself, but at every critical stage preceding it. See,

e.g., Coleman v. Alabama, 399 US 1 (1970) (remanded for

determination whether a lack of counsel at pre-indictment

preliminary hearing prejudiced defendants at trial);

Hamilton v. Alabama, 368 US 52, 54 (1961) (absence of

counsel at post-indictment arraignment “may affect the

whole trial”); Massiah v. United States, supra (post-

indictment conversation with government informant

monitored by police); United States v. Wade, 388 US 218

(1967) (post-indictment lineup).

Admittedly, before the decision to prosecute, the state

has a strong interest in conducting interrogations. After

initiation of formal charges, however, the state should

have no legitimate need to engage in private inquisition to

further prepare its case for trial. Where police feel con-

strained to engage in post-indictme.:t, counselless ques-

tioning as advocates or adversaries, there likely are

enhanced possibilities for gamesmanship, deception, and

ultimately untrustworthiness. This unacceptable result is

more likely if the Sixth Amendment is depreciated and

the right to counsel is deemed comparable to the pro-

phylactic warnings required by Miranda. Where the

state deliberately violates the right to counsel, the need to

preserve the right itself should render balancing imper-

missible.

18

Respondent commends a reading of Michigan v. Jack-

son, 475 US 625 (1986) as an application of these principles

rather than as a formula ion of a prophylactic rule akin to

Miranda warnings or the “protective umbrella” of

Edwards. Solem v. Sturnes, 465 US 638, 644, n. 4 (1984).

To respondent this is so because the adversarial process in

Jackson had commenced and the post arraignment inter-

rogations there implicated the constitutional guarantee

itself. To deprive a defendant of this substantive constitu-

tional right in this setting “may be more damaging than

denial of counsel during the trial itself.” Maine v.

Moulton, 474 US at 170 (1985). Or, as stated in Michigan

v. Jackson, 475 US at 632, “after a formal accusation has

been made the constitutional right to the assistance

of counsel is of such importance that the police may no

longer employ techniques for eliciting information from

an uncounseled defendant that might have been entirely

proper at an earlier stage of their investigation.”

Even assuming arguendo that Michigan v. Jackson

only establishes a prophylactic rule (a violation of which

petitioner admits), the record in this case reflects a consti-

tutional deprivation of Tyris Harvey's right to counsel, not

only a breach of that prophylactic rule. Willful, deliberate

disregard for respondent's right to counsel and the affir-

mative misrepresentation that counsel was unnecessary

constitute a Sixth Amendment violation. It was a viola-

tion which penetrates the core value of that constitutional

guarantee and therefore strikes at the integrity of the

trial process itself. It cannot be suggested that respond-

ent is not entitled to judicial relief. United States v. Mor-

rison, 449 US 361 (1981).

Nor should the onus be placed on respondent to obviate

or mitigate the harm by forfeiting his right to testify. '* To

A defendant has a due process right to testify at trial. Brooks v.

suggest that deliberate misconduct by the state need not

be deterred, as the Solicitor General contends, is to con-

done it and encourage it as well. The states disrespect

for the right to counsel here raises serious concern. If the

state is permitted to engage in such conduct or benefit

from it, then the integrity and reliability of the trie!

process is impaired. In Portash, supra, the defendant's

presumably truthful and reliable grand jury testimony

could not be used for impeachment purposes without

doing violence to the Fifth Amendment just as respond-

entꝭ statement six days before trial cannot be used with-

out eviscerating his Sixth Amendment right. See

Meadows v. Ruhl mann. 812 F2d 72 (2d Cir), cert denied,

482 US 915 (1987); United States v. Brown, 699 F2d 585

(2d Cir. 1983). See also People v. Gonyea, 421 Mich 462.

365 NW2d 136 (1984). Various commentators concur in

the submission that statements obtained in contravention

of the Sixth Amendment should not be permitted for

impeachment purposes. See Comment, “The Impeach-

ment Exception to the Sixth Amendment Exclusionary

Rule”, 87 Col. L. Rev. 176 (1987); Comment, “Application

of the Impeachment Exception to the Sixth Amendment

Exclusionary Rule: Seeking a Resolution Based on the

Substance of the Right to Counsel”, 50 Albany L. Rev. 343

(1986).

Incredibly, petitioner here apparently seeks blanket

authority for the police to interrogate defendants at any

Tennessee, 406 US 605, 612 (1972) (“Whether the defendant is to

testify is an important tactical decision as well as a matter of constitu-

tional right. It violates due process for a defendant to be forced to

sacrifice one constitutional right to enforce another. Simmons v.

United States, 390 US 377, 393-4 (1968).

“Cf Moran v. Burbine, 475 US 412 (1986). See Pitofsky, “A Missed

Opportunity to Curb Police Deception of Criminal Defense Attor-

neys. 25 American Cr. L. Rev. 89 (1987).

20

time after they have been accused and without any notice

to their counsel. The logical import of petitioner's conten-

tion is that the police should be free to conduct such

interrogations whenever and as often as they like, even

during the trial itself. Of course, those most likely to have

their Sixth Amendment rights violated are those defend-

ants already in the custody of the state, especially indi-

gent persons like respondent Harvey. And license to

engage in such activity can only result in substantial

numbers of pre-trial or mid-trial evidentiary hearings,

which will be disruptive, as well as impair the role of

counsel that is so “critical to the ability of the adversarial

system to produce just results.” Strickland v. Wash-

ington, 466 US 668, 685 (1984).

Moreover, in this instance, the police are the “alter ego”

of the prosecutor. Neither the courts nor the legal profes-

sion would condone the conduct here in the context of civil

litigation. In United States v. Springer, 460 F2d 1344,

1354 (7th Cir. 1972), then Circuit Judge Stevens in dissent

observed:

“The work of the agents was trial 5

and simple. In a civil context I consider’ this

regard — ry - 1 ——— 0

it as a ure reg-

ularity as to violate due process clause of the

Fifth Amendment. 460 F2d at 1355.

See also United States v. Hammad, 846 F2d 854 (2d Cir.

1988) (government argued alternatively that

DR7-104(A)(1) becomes operative after Sixth Amend-

ment rights have attached); L’nited States v. Thomas, 474

F2d 110 (10th Cir.), cert. denied 412 US 932 (1973).

In short, the adversary process cannot function prop-

erly if the state is left free to circumvent or defile the night

to counsel at whim. Permitting the state to impeach a

21

defendant with a statement taken in violation of the Sixth

Amendment would destroy the constitutional guarantee

“essential to any fair trial of a case against a prisoner”

(Powell v. Alabama, 287 US at 70). The right to counsel

would become meaningless. !%

CONCLUSION

For the reasons stated herein, the judgment of the

Michigan Court of Appeals should be affirmed.

Respectfully submitted,

Ropert M. MorGan

2180 Penobscot Building

Detroit, MI 48226

(313) 961-7070

Counsel for Respondent

The question of a valid waiver is not before the Court, yet the

Solicitor General argues that respondent waived his richt to counsel.

Brief For The United States fn & at 23. As indicated earlier, the trial

prosecutor admitted that the statement was Miranda defective. The

showing necessary for a waiver of counsel has been equated to that

necessary to demonstrate a waiver of the right to trial by jury.

Boykin v. Alabama, 395 US 238 (1969). A valid waiver is not shown

unless it is demonstrated that there is an understanding and intel-

ligent relinquishment of a known right. Tague v. Louisiana, 444 US.

469 (1980). The prosecutor's burden to demonstrate a waiver is not

only a heavy one. but courts indulge in every reasonable presumption

against finding one. North Carolina v. Butler, 441 US 369 (1979). See

also Carnley v. Cochran, 368 US 506 (1982)