Amicus Curiae Brief — Michigan v. Harvey

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> Supreme Court. U. .

No. 88-512 2) FILE}

IN THE JOSEPH F. SPANIOL, UR.

CLERK

Supreme Court of the United —

OCTOBER TERM, 1988

——

STATE OF MICHIGAN,

Petitioner,

—_—V—

TYRIS LEMONT HARVEY,

Respondent.

ON WRIT OF CERTIORARI TO THE MICHIGAN COURT OF APPEALS

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION AND THE ACLU OF MICHIGAN

IN SUPPORT OF RESPONDENT

Steven R. Shapiro

(Counsel of Record)

Cedric Merlin Powell

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Paul J. Denenfeld

ACLU Fund of Michigan

1701 David Whitney Building

1553 Woodward Avenue

Detroit, Michigan 48226

(313) 961-4662

——— a ae Pe eet -

TABLE OF CONTENTS

TABLE OF AUTHORITIES . .. ++ «© «© « «

INTEREST OF AMICI .. ++ © © © © # »«

STATEMENT OF THE CAS E . * al . * >. * *

SUMMARY OF ARGUMENT .. ++ «+ «© «© « «

I. RESPONDENT'S SIXTH AMENDMENT

RIGHTS WERE VIOLATED IN THIS

CASE BY THE USE OF DECEPTIVE

POLICE TACTICS TO OBTAIN A POST-

ARRAIGNMENT STATEMENT WITHOUT THE

BENEFIT OF COUNSEL ..++ «+ « «

II. STATEMENTS OBTAINED IN VIOLA-

TION OF CORE SIXTH AMENDMENT

RIGHTS SHOULD NOT BE ADMISSIBLE

FOR ANY PURPOSE, INCLUDING

IMPEACHMENT . . + «© © © © © © © »

CONCLUS I ON al >. al * * * * * >. . . >. ol *

TABLE OF AUTHORITIES

a Bye Cir. 1983) :

401 U.S. 222 (1971) Seeses

3s 8 458 Tuts iets A.

5 it. a oe

Kuhlmann v. Wilson,

477 U.S. 436 (1986) ......

’

474 U .S. 159 (1985)

Mapp _v. Ohio,

367 U.S. 643 (1961) ......

’

377 U.S. 201 (1964) .. 8, 13,

Meadows v. Kuhlmann,

812 F.2d 72 (2d Cir.),

cert. denied,

482 U.S. 915 (1987) ......

23, 28

17, 30

eo e a

23, 24

14, 19

al * 13

Michigan v. Jackson,

475 U.S. 625 (1986)

’

423 U.S. 96 (1975) . .

417 U.S.

’

433 (1974)

Moore v. Michigan,

355 U.S.

155 (1957

Moran v. Burbine,

475 U.S.

440 U.S.

420 U.S.

412 (1986)

450 (1979)

’

714 (1975)

’

People v. Gonyea,

421 Mich. 462 (1984)

’

66 Ill.2d 276 (1977)

Powell v. Alabama,

287 U.S. 45 (1932) .

United States v. Brown,

699 F.2d 585 (2d Cir.

467 U.S.

180 (1984)

1983)

vei

iii

’

12,

13,

28,

447 U.S. 264 (1980) ....

468 U.S. 897 (1984) ....

425 U.S. 748 (1976) ....

347 U.S. 62 (1954) .....

OTHER AUTHORITIES

Kamisar, Brewer v. Williams,

Massiah, and Miranda:

" ">

°>

’

67 Geo.L.J. 1 (1978) ....

INTEREST OF AMICI+/

The American Civil Liberties Union

(ACLU) is a nationwide, nonpartisan,

membership organization dedicated to

preserving the constitutional protections

embodied in the Bill of Rights. The ACLU

of Michigan is one of its statewide affili-

ates.

This case involves the meaning and

scope of the right to counsel provided by

the Sixth Amendment. Because the right to

counsel is central to any constitutional

vision of the appropriate relationship

between the individual and state, the

issues in this case are directly related to

the organizational purposes of the ACLU.

Y/ letters of consent to the filing of this brief

have been lodged with the Clerk pursuant to Rule

36.2.

STATEMENT OF THE CASE

The record in this case reveals a

persistent effort by the police to elicit

statements from the respondent in violation

of his constitutional rights.

Respondent's first statement was made

in the period following his arrest and

before his arraignment on charges of first

degree criminal sexual conduct. So far as

the record reveals, he was never advised of

his Miranda rights. (Pet.App.2a) His

statement was nonetheless recorded by the

police, who asked him to verify its

accuracy by signing the bottom of each

page. In response, respondent agreed to

sign only the first page. Id. He refused

to sign the final two pages because he did

not believe they accurately reflected what

he had said to the police. Id. Later that

same day, respondent was arraigned and

counsel was appointed.

On September 9, 1986, six days before

the commencement of trial, respondent in-

formed the police that he wanted to make

another statement. When he expressed some

doubt as to whether he should make the

statement in the absence of his lawyer, an

officer told him that his attorney's pres-

ence was unnecessary since his statement

would be recorded and a copy of the state-

ment would be given to counsel. (Pet.

App. 3a)

Following this misleading exchange,

respondent was asked to sign a form waiving

his Miranda rights. As before, his re-

sponse was a selective one. Thus, he

initialed those sections of the form deal-

ing with his right to remain silent, to

have an attorney present during question-

ing, and to have counsel appointed if he

could not afford one. Id. He did not

initial the section of the form noting

that any statement he made could be used

against him, nor did he acknowledge his

right to terminate questioning "at any

time." (Pet.App.4a) Despite these omis-

sions, respondent was asked if he under-

stood his constitutional rights. He

answered yes and then proceeded to give a

detailed statement that was different from

his first statement but, as the Michigan

Court of Appeals noted, “essentially simi-

lar to his [subsequent] trial testimony."

Id.

Neither statement was used by the

prosecution during its case-in-chief.

However, once respondent testified in his

own behalf, the prosecution introduced both

statements for impeachment purposes during

cross-examination. The signed page cf the

prearraignment statement was introduced

without objection. Id. The postarraign-

ment statement was admitted by the trial

judge despite the prosecutor's concession

that it had been obtained in violation of

Miranda. (Pet.App.5a)

Following his conviction, respondent

appealed to the Michigan Court of Appeals

on the ground that neither statement should

have been admitted for any purpose. The

Court of Appeals agreed on one statement

and disagreed on the other. Specifically,

the court held that respondent's pre-

arraignment statement had been voluntarily

made under the Fifth Amendment and was

therefore admissible as impeachment evi-

dence even if no Miranda warnings were

given. (Pet.App.6a)2/

Respondent's second statement, by

contrast, was declared inadmissible under

the Sixth Amendment because it had been

made following arraignment and after

respondent had requested the assistance of

counsel. (Pet.App.6a-7a)2/ In addition,

the court held that "[bjecause this case

involved a credibility contest between

defendant and the victim, we cannot say

that the error was harmless beyond a rea-

2/ Michigan law apparently allowed the appellate

court to consider the admissibility of the first

statement even though no contemporaneous abjection

had been made at trial.

sonable doubt." (Pet.App.7a) The state's

application for leave to appeal was denied

by the Michigan Supreme Court. (Pet.

App. 8a)

SUMMARY OF ARGUMENT

The issue in this case is whether a

statement taken in violation of the Sixth

Amendment right to counsel can be used to

impeach a defendant's credibility during

trial.4/

For more than half a century, this

Court has held that the right to counsel

attaches at arraignment. See Powell v.

Alabama, 287 U.S. 45 (1932). This Court

has also held that the right to counsel can

not be circumvented by strategies designed

4/ he Sixth Amendment provides in relevant part

that "(ijn all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance

of Counsel for his defence."

to encourage the defendant to make a post-

arraignment statement in the absence of

counsel. See e.g., Maine v. Moulton, 474

U.S. 159, 170-71 (1985); Massiah v. United

States, 377 U.S. 201, 206 (1964). Finally,

in Michigan v. Jackson, 475 U.S. 625, 636

(1986), this Court adopted the prophylactic

rule that the right to counsel is not sub-

ject to waiver once invoked at "an arraign-

ment or similar proceeding."

In urging reversal, the central con-

tention of both petitioner and the Solici-

tor General is that the only rule that was

violated in this case was the prophylactic

rule of Michigan v. Jackson. Proceeding

from this premise, both petitioner and the

Solicitor General argue that the violation

of such prophylactic rules does not justify

the exclusion of otherwise reliable evi-

dence for impeachment purposes. Cf. Harris

v. New York, 401 U.S. 222 (1971). This

argument is flawed for several reasons.

First, it is simply not true that

Michigan v. Jackson stands as the sole

impediment to the use of respondent's post-

arraignment statement in this case. Even

without the benefit of the prophylactic

rule announced .n Michigan v. Jackson, the

purported waiver of respondent's Sixth

Amendment rights would have to be invali-

dated because it was the product of an

affirmative misrepresentation by the

police. Accordingly, it is unnecessary to

resort to a prophylactic rule in order to

conclude that respondent's waiver was

neither knowing nor voluntary. See Johnson

v. Zerbst, 304 U.S. 458 (1938).

Once it is acknowledged that Michigan

v. Jackson is only an alternative basis for

the holding below, this case becomes far

Simpler and less controversial. Core vio-

lations of the Sixth Amendment, like core

violations of the Fifth Amendment, have

never been subject to a balancing test.

See New Jersey v. Portash, 440 J.S. 450,

459 (1979). Otherwise, there would be

little substance to this Court's assurance

that the "Sixth Amendment guarantees the

accused, at least after the initiation of

formal charges, the right to rely on coun-

sel as a 'medium' between him and the

State." Maine v. Moulton, 474 U.S. at 176.

It is precisely because the Sixth

Amendment affects the integrity of the

trial process itself that petitioner's

effort to draw an analogy with the Fourth

Amendment does not work. In a Fourth

Amendment context, the exclusionary rule is

used to promote values that are separate

and apart from the trial process. Under

those circumstances, this Court has been

willing to balance the deterrent gain

against the adjudicatory loss.

This Court has not adopted a cost-

benefit approach when the constitutional

violation relates to the integrity of the

adjudicatory process itself. For example,

the Fifth Amendment bar against self-

incrimination cannot be breached for any

purpose, even when there is reason to

believe that a defendant's “compelled”

testimony is entirely reliable and thus

likely to enhance the factfinding process.

New Jersey v. Portash, supra. Similarly, a

defendant's right to trial by jury cannot

be sacrificed merely because other methods

of conducting a trial may be more efficient

and, indeed, perhaps even more likely to

discover the "truth."

At bottom, petitioner's real quarrel

is not with the ruling below but with this

Court's Sixth Amendment jurisprudence.

That jurisprudence is both well-settled and

well-grounded. In any event, it is not

properly subject to reconsideration in this

case given the limited question presented

for review.

ARGUMENT

I. RESPONDENT'S SIXTH AMENDMENT RIGHTS

WERE VIOLATED IN THIS CASE BY THE

USE OF DECEPTIVE POLICE TACTICS TO

OBTAIN A POSTARRAIGNMENT STATEMENT

WITHOUT THE BENEFIT OF COUNSEL

In a series of cases over the past

half-century, this Court has repeatedly

held that the right to counsel attaches at

arraignment, which this Court has properly

recognized as a critical stage of the

criminal proceeding. See e.g., Michigan v.

Jackson, 475 U.S. at 629; Maine v. Movlton,

474 U.S. at 170-71; United States v.

Gouveia, 467 U.S. 180, 187-89 (1984);

Brewer v. Williams, 430 U.S. 387, 398

(1977); Kirby v. Illinois, 406 U.S. 682,

689 (1972); Massiah v. United States, 377

U.S. at 205; Johnson v. Zerbst, 304 U.S. at

462-63; Powell v. Alabama, 287 U.S. at 57.

The rationale for this right is also

well-established. The decision to proceed

with arraignment indicates that

the government has committed itself to

prosecute, and. . . that the adverse

positions of government and defendant

have solidified. It is then that a

defendant finds himself faced with the

prosecutorial forces of organized

society, and immersed in the intrica-

cies of substantive and procedural

criminal law.

Kirby v. Illinois, 406 U.S. at 689.

Accordingly, the police may not inter-

rogate an uncounseled defendant after

arraignment unless the defendant has valid-

ly waived his right to representation.

Furthermore, the police may not trick a

defendant into speaking by creating a

scenario in which the defendant is led to

believe that the presence of counsel is

unimportant. This rule against chicanery

is hardly unique to Sixth Amendment law.

Properly understood, it is merely a re-

statement of the general principle that the

waiver of constitutional rights must be

knowing and voluntary. See Johnson v.

Zerbst, supra. At the same time, it has

special poignancy in the counsel context

since one of the functions of counsel in

our adversary system is to even the scales

between the state and the often untutored

defendant it is trying to prosecute.

Seen in this light, the facts of this

case fit squarely within the line of cases

holding that the police may not use an

informant to elicit testimony from a

defendant who is represented by counsel and

who, in many instances, would not voluntar-

ily speak to the police without counsel

being present. See Kuhlmann v. Wilson, 477

U.S. 436 (1986); Maine v. Moulton, supra;

United States v. Henry, 447 U.S. 264

(1980); Massiah v. United States, supra.

Petitioner characterizes these cases

as mere “informant" cases in an effort to

distinguish them. (Pet.Br. at 29) In

fact, they stand for a larger principle.

As this Court expressed it in Maine v.

Moulton, 474 U.S. at 176, any “knowing

exploitation by the State of an opportunity

to confront the accused without counsel

being present is as much a breach of the

State's obligation not to circumvent the

right to the assistance of counsel as is

the intentional creation of such an oppor-

tunity. "2/

That, of course, is precisely what

occurred in this case. Once respondent

expressed a desire to talk to the police,

the police “knowing[ly] exploit[{ed]" the

opportunity that had fallen into their lap

by deliberately misinforming respondent

about the need to have counsel present. If

anything, that deception is even worse than

what occurred in the "informant" cases,

where the constitutional sin was one of

omission rather than commission. Likewise,

this case is more troubling than Brewer v.

Williams, 430 U.S. 387, where the police

2/ Petitioner devotes a large portion of its brief

to arguing that Massiah was wrongly decided. (Pet.

Br. at 21-52) However, as petitioner candidly

acknowledges, this Court has reaffirmed Massiah at

least three times during the past decade. See

p-15, Supra. Moreover, the continuing validity of

Massiah is not included within the question

presented for review by this Court.

encouraged a defendant to confess through

use of the so-called "Christian burial"

speech while the defendant was being trans-

ported, without counsel, from one city to

another after his arraignment. At worst,

the police in Brewer were guilty of a psy~-

chological ploy that was undoubtedly made

easier by the absence of counsel. Here,

the police engaged in an intentional mis-

representation that went to the very heart

of respondent's Sixth Amendment rights.

It is hardly surprising, therefore,

that the prosecution made no effort to use

respondent's postarraignment statement

during its case-in-chief. The Sixth Amend-

ment violation could not have been clearer.

The confusion in this case has largely

arisen at the appellate level. In an

effort to preserve its conviction, peti-

tioner has constructed an argument, now

joined by the Solicitor General, that the

police misconduct in this case did not

violate respondent's core Sixth Amendment

rights but only the prophylactic rule

announced in Michigan v. Jackson. That

contention is unpersuasive.

Jackson holds that the right to

counsel can never be waived after arraign-

nent regardless of the circumstances under

which the arraignment is obtained. Put

another way, the rule in Jackson would

invalidate a postarraignment waiver even

if the waiver could fairly be described as

knowing and voluntary by every other objec-

tive criteria. That predicate does not

exist here. The Sixth Amendment violation

in this case is not a product of Jackson,

although Jackson was surely violated as

well. Rather, the crux of the Sixth Amend-

ment violation in this case is that

respondent was misled into waiving his

right to counsel by the deliberately false

| and manipulative statement that counsel was

unnecessary. Given that deliberate misrep-

resentation, respondent's waiver could not

possibly be sustained under conventional

waiver theory, even without the benefit of

Michigan v. Jackson. ®/

In short, it is important to under-

stand that the Sixth Amendment itself was

violated in this case, not merely a prophy-

lactic rule created by this Court.

§/ See Carnley v. Cochran, 369 U.S. 506, 514

(1962) ("'courts [should] indulge every reasonable

presumption against waiver’ of fundamental consti-

tutional rights"); Moore v. Michigan, 355 U.S. 155,

161 (1957) ("{wjhere the right to counsel is of such

critical importance as to be an element of Due

Process under the Fourteenth Amendment, a finding

of waiver is not lightly to be made”); Johnson v.

Zerbst, 304 U.S. at 468; cf. Moran v. Burbine, 475

U.S. 412, 423 n.1 (1986); Michigan v. Mosley, 423

U.S. 96, 104 n.10 (1975).

II. STATEMENTS OBTAINED IN VIOLATION

OF CORE SIXTH AMENDMENT RIGHTS

SHOULD NOT BE ADMISSIBLE FOR ANY

PURPOSE, INCLUDING IMPEACHMENT

Prophylactic rules exist to enforce

constitutional guarantees. When prophylac-

tic rules are violated, this Court has

occasionally resorted to a cost-benefit

approach in determining whether the prophy-

lactic rule should be strictly construed.

Constitutional rights, however, are not

created by this Court and cannot be bar-

gained away in pursuit of some other social

goal. To the extent that the enforcement

of those rights involves a weighing of

interests, that balance was struck when the

Constitution was written. Cf. Virginia

State Board of Pharmacy v. Virginia Citi-

zens Consumer Council, 425 U.S. 748, 770

(1976). Accordingly, this Court has con-

sistently distinguished between prophylac-

tic rules and core constitutional values.

And when the constitutional values concern

the trial process itself, this Court has

been steadfast in its refusal to allow any

use of tainted evidence.

Thus, in New Jersey v. Portash, 440

U.S. 450, this Court refused to engage in

the very same balancing that petitioner

advocates here. The precise issue in

Portash was whether, despite the Fifth

Amendment's prohibition against compulsory

self-incrimination, a prosecutor could use

legislatively immunized grand jury testi-

mony for impeachment purposes in a criminal

trial. This Court ruled against the use of

such evidence, holding that testimony given

in response to a grant of legislative immu-

nity is "the essence of coerced testimony,"

440 U.S. at 459, and therefore unavailable

for any purpose.

The holding in Portash was not based

solely on this Court's concern that com-

pelled statements are inherently unrelia-

ble. Instead, this Court justified its

holding on much broader grounds: "[A}

defendant's compelled statements, as

opposed to statements taken in violation of

Miranda, may not be put to any testimonial

use whatever against him in a criminal

trial." 440 U.S. at 459. This is because

"(tjhe Fifth and Fourteenth Amendments

provide a privilege against compelled self-

incrimination, not merely against unrelia-

ble self-incrimination." Id. (emphasis in

original).

The Sixth Amendment right to counsel

is equally vital and equally protected by

the Constitution. Applying this Court's

analysis in Portash, therefore, the Michi-

gan Supreme Court has held that "the right

to counsel {is]) of such fundamental impor-

tance that it [is] unnecessary . .. to

. balance the violation of this right

against condoning perjury . .. . (Rjegard-

less of other considerations the right to

counsel is so important that it must auto-

matically be accorded the greatest protec~-

tion." People vy. Gonyes, 421 Mich. 462,

479 (1984).2/ Accord, Meadows v. Kuhlmann,

812 F.2d 72 (2a Cir.), cert. denied, 482

U.S. 915 (1987); United States v. Brown,

699 F.2d 585 (2d Cir. 1983); Bishop v.

Rose, 701 F.2d 1150 (6th Cir. 1983); People

v. Knippenberg, 66 Il1.2d 276 (1977).

Contrary to petitioner's view, this

Court's decisions in Harris v. New York,

401 U.S. 222 (1971), and Oregon v. Hass,

7/ The decision in Gonyea was based on state con-

stitutional grounds. It was nevertheless relied

on aS persuasive precedent by the court below.

(Pet.App. 7a)

420 U.S. 714 (1975), are entirely consist-

ent with that approach. Both cases in-

volved the use of statements obtained in

violation of Miranda to impeach a defend-

ant's testimony at trial. Neither case

involved the violation of a substantive

constitutional right. That distinction

is crucial, as this Court explained in

Portash: ,

Balancing of interests was thought to

he necessary in Harris and Hass when

the attempt to deter unlawful police

conduct collided with the need to

prevent perjury. Here, by contrast,

we deal with the constitutional

privilege against compulsory self-

incrimination in its most pristine

form. Balancing, therefore, is not

simply unnecessary. It is impermis-

sible.

440 U.S. at 459.8/

8/ See Michigan v. Tucker, 417 U.S. 433, 444

(1974) (Miranda warnings are "not themselves rights

The constitutional distinction between

Miranda, and the Fifth and Sixth Amendment

rights it is meant to protect, has also

been noted by Professor Kamisar:

Massiah {and the Sixth Amendment)

make{)}) clear that once adversary

proceedings have commenced against an

individual, government efforts to

elicit incriminating statements,

whether done openly in the police

station or “indirectly and surrepti-

tiously," violate the individual's

right to counsel. But when the gov-

ernment attempts to elicit incrimina-

ting statements from an individual

before adversary proceedings have

commenced against him, it is not

necessarily violating his right to

counsel. For in the absence of other

factors, such as an inherently compel-

ling interrogation environment [which

the Fifth Amendment expressly for-

bids}, an individual is not entitled

to counsel whenever he is subjected to

an “interrogation,” but only when such

interrogations take place at or after

commencement of adversary proceedings

(when the Sixth Amendment is trig-

gered).

Kamisar, Brewer v. Williams, Massiah, and

Miranda: What Is “Interrogation”? When

Does It Matter?, 67 Geo.L.J. 1, 66 (1978)

(emphasis added).

Petitioner's failure to grapple with

the critical distinction between prophylac-

tic rules and core constitutional values

pervades its argument and cannot be rescued

by drawing analogies with the Fourth Amend-

ment. Amici acknowledge that evidence

obtained in violation of the Fourth Amend-

ment may be used for impeachment purposes...

See Walder v. United States, 347 U.S. 62

(1954). The Fourth Amendment, however, is

not designed to preserve the integrity of

the trial process. Recognizing that fact,

this Court has been willing to consider

whether the deterrent value of the exclu-

sionary rule justifies the loss of potenti-

ally relevant evidence in particular cases.

Compare Mapp v. Ohio, 367 U.S. 643 (1961),

with United States v. Leon, 468 U.S. 897

(1984).

Here, the Sixth Amendment interest at

stake -- like the Fifth Amendment interest

at stake in New Jersey v. Portash -- is

inextricably tied to our sense of a fair

adversarial process. Nor is “truth” the

only goal of that process, as the Solicitor

General suggests in his brief. Fairness

values are also important and were embodied

by the framers in the Fifth and Sixth

Amendments.

The rights guaranteed by these amend-

ments have never been subject to the sort

of balancing test that petitioner proposes.

For example, no one would seriously argue

that a defendant's right to trial by jury

can be sacrificed merely because other

methods of conducting a trial may be more

efficient and, indeed, perhaps even more

likely to discover the "truth." Faced with

the very same argument that petitioner now

makes, the Sixth Circuit wrote: "Our con-

cern is with a constitutional right which

is at the heart of our adversary system of

criminal justice." Bishop v. Rose, 701

F.2d at 1157.

It is, moreover, for precisely that

reason that this Court should reject peti-

tioner's effort to portray the rule it is

seeking as a minor intrusion on the Sixth

Amendment. In truth, petitioner's approach

would substantially undermine the right to

counsel that this Court has recognized as

“essential to any fair trial of a case

against a prisoner." Powell v. Alabama,

287 U.S. at 70.

In the instant case, respondent was

misinformed by the police about the neces-

sity of conferring with counsel before he

made his postarraignment statement. As a

result, he was deprived of a vital consti-

tutional right during the critical stages

of the criminal justice process “where the

results might well settle the accused's

fate and reduce the trial itself to a mere

formality." Maine v. Moulton, 475 U.S. at

170 (citations omitted).

The essence of the constitutional

guarantee of the right to counsel is to

permit a defendant to make an informed

decision amongst a myriad of procedural and

substantive choices. See Powell v.

Alabama, 287 U.S. at 69. To admit evidence

that is inherently tainted due to the lack

of an informed decision by the defendant

would largely defeat the constitutional

guarantee embodied in the Sixth Amendment.

Recognizing the great pressure on law

enforcement officers, this Court has

observed: "(Ijt is precisely the predicta-

bility of those pressires that makes imper-

ative a resolute loyalty to the guarantees

that the Constitution extends to us all."

Brewer v. Williams, 430 U.S. at 406.

Unfortunately, petitioner's rule would

encourage exactly the sort of police mis-

conduct that this record reveals. As this

Court has asked in analogous circumstances,

"(W)hat use is a defendant's right to

effective counsel at every stage of a

criminal case if, while he is held awaiting

trial, he can be questioned in the absence

of counsel until he confesses?" Maine v.

Moulton, 474 U.S. at 171 (citation

omitted). While perhaps not quite as

stark, this case poses an equivalent

problem.

CONCLUSION

For the reasons stated herein, the

decision below should be affirmed.

Respectfully submitted,

Steven R. Shapiro

(Counsel of Record)

Cedric Merlin Powell

American Civil Liberties

Union Foundation