# Amicus Curiae Brief — Michigan v. Harvey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 344

## Text

Py

> 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 *

ii

12

12

20

31

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) ......

ii

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,

23

23

29

23

13

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) ....

iv

15

27

20

26

25

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

10

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."

11

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,

12

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.

13

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

14

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

15

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.

16

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

17

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

18

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).

19

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.

20

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.

21

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

22

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)

23

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

25

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),

26

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

27

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

28

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

29

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.

30

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

132 West 43 Street

New York, New York 10036

(212) 944-9800

Paul J. Denenfeld

ACLU Fund of Michigan
1701 David Whitney Bldg.
1553 Woodward Avenue
Detroit, Michigan 48226
(313) 961-4662

Dated: May 15, 1989

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1023%3A8. Public record. Not legal advice.